R v Debs
[2011] NSWSC 1248
•24 October 2011
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 1900Cases 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 51Category: Interlocutory applications Parties: Regina
Bandali Michael DEBS
Australian Broadcasting Corporation
Fairfax Media
News Corporation
Seven NetworkRepresentation: 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 Ms Harty and is currently serving sentences of life imprisonment for each of these murders. His conviction of the murder of the police officers occurred in 2002 He was sentenced for the murder of Ms Harty in June 2007 and an appeal to the Victorian Court of Appeal was dismissed in December 2008. In the course of the application with which I am presently dealing, no evidence was put before me to support the DNA suggestions implicit in the Notice of Motion but it appears likely from information provided to me during the course of voir dire proceedings between the Crown and Counsel for the Accused that the factual situation contemplated by those sub-paragraphs of the Notice of Motion as deal with DNA exists.
Evidence provided during the application indicates that, unsurprisingly, over the years the Accused has attracted a deal of publicity. His solicitor, Mr Reslan, said that searches on Google under the names "Bandali Debs" and "Bandali Michael Debs" revealed 3200 and 12200 references respectively. The first page of the search under the name Bandali Debs showed that the source of two of the ten entries was Wikipedia and the source of four others, "heraldsun", "theage", "smh" and "news". The first page of the search under the name Bandali Michael Debs showed that the source of the first of 10 entries was Wikipedia and the source of 5 others, "theaustralian", "theage", "heraldsun", and "smh". I think I may take judicial notice of the fact that these sources are associated with the media bodies to whom, as indicated below, notice of this application has been given.
Mr Reslan's searches also revealed articles published by others and he provided as examples one by ABC News (posted in November 2009), one by The Australian posted in September 2010 and apparently sourced from AAP, and a third possibly also sourced from AAP although some of the document is indistinct.
Mr Reslan's Affidavit also shows that the social networking site "Facebook" maintains a page describing the Accused's involvement in the murders of the police officers and Ms Harty, and that the online encyclopaedia website, Wikipedia, maintains web pages in relation to the Accused and in relation to the murders of the two police officers
Mr Reslan also deposed to having used the search engine "Google" to search for the phrase "internet search engine usage". That search revealed the level of usage in Australia during the period September 2010 to 2011 attributed to "Google" was 94.45%, to the search engine "Bing" 3.66% and the search engine "Yahoo" 1.45%. Other search engines had a lower level of usage.
Evidence showed that notice of the application was given by facsimile transmission to a number of media organisations, namely, viz:
Australian Associated Press (AAP)
Australian Broadcasting Corporation (ABC)
Special Broadcasting Service Corp (SBS)
Fairfax Media
News Corporation
Seven West Media or Seven Network
Channel 9 or PBL Media
Nine MSN
Channel Ten
The ABC, Fairfax Media, News Corporation and the Seven Network appeared by Counsel, Mr Sandy Dawson and argued against the orders sought.
Mr Reslan also gave evidence of contacting Google Australia and being given numbers in response to a request for facsimile numbers for Google Inc headquarters and legal department in the United States, and of having sent notice of the application to those places and to the Google Australia legal department.
Mr Reslan deposed to sending by facsimile transmission similar notification to the legal department of Yahoo7 and provided evidence tending to indicate that notice of the application had also been sent to the search engine Bing which, he was informed, operated from the United States and not Australia. Mr Reslan's affidavit suggests that Bing has some connection with Microsoft Australia.
I should say a little more about the case that the Crown intends to present. The information has been derived by me from the Crown Case Statement and in the course of legal argument as to the admissibility of evidence falling within s 98 of the Evidence Act and which the Crown has indicated it seeks to adduce.
The body of Donna Hicks was found in April 1995 on or near a bush track. She had been shot through the head. Vaginal swabs and DNA extracted from them, together with the location of Ms Hick's panties and their freedom from semen, tended to indicate that the Accused had had intercourse with her shortly before her death. Ms Harty was also shot through the head, her body was found on or adjacent to a bush track and again vaginal swabs and DNA extracted from them and the circumstances of her panties tends to suggest the Accused had intercourse with her shortly prior to her death.
Although there still remains for consideration by me some issues as to the admissibility of the DNA evidence, I have ruled that subject to those issues being resolved in favour of the Crown, in principle evidence as to the circumstances of Ms Harty's death will be admissible in the forthcoming trial and available for use as envisaged by s 98. It is common ground between the Crown and the Accused that evidence of the Accused's conviction in relation to Ms Harty's death and involvement in the death of the two police officers will not be admitted in the forthcoming trial.
It appears from the remarks of Kaye J when sentencing the Accused for the murder of Ms Harty that her murder and the murder of the two police officers were committed in circumstances of callousness. His Honour described the Accused as "an evil, violent and dangerous man".
It is fair to say that information concerning the murders of the police officers and Ms Harty other than that which I propose to admit could only be described as extremely prejudicial to the Accused in the forthcoming trial. Indeed, there is much to be said for the view that if details of those prior offences came to the attention of the jury (other than details strictly admissible) the Accused could not have a fair trial.
So far as is presently relevant, the Court Suppression and Non-Publication Orders Act, 2010 provides:-
3 non-publication order means an order that prohibits or restricts the publication of information (but that does not otherwise prohibit or restrict the disclosure of information).
publish means disseminate or provide access to the public or a section of the public by any means, including by:
(a) publication in a book, newspaper, magazine or other written publication, or
(b) broadcast by radio or television, or
(c) public exhibition, or
(d) broadcast or publication by means of the Internet.
suppression order means an order that prohibits or restricts the disclosure of information (by publication or otherwise)
4 This Act does not limit or otherwise affect any inherent jurisdiction or any powers that a court has apart from this Act to regulate its proceedings or to deal with a contempt of the court.
5 This Act does not limit or otherwise affect the operation of a provision made by or under any other Act that prohibits or restricts, or authorises a court to prohibit or restrict, the publication or other disclosure of information in connection with proceedings.
6 In deciding whether to make a suppression order or non-publication order, a court must take into account that a primary objective of the administration of justice is to safeguard the public interest in open justice.
7 A court may, by making a suppression order or non-publication order on grounds permitted by this Act, prohibit or restrict the publication or other disclosure of:
(a) information tending to reveal the identity of or otherwise concerning any party to or witness in proceedings before the court or any person who is related to or otherwise associated with any party to or witness in proceedings before the court, or
(b) information that comprises evidence, or information about evidence, given in proceedings before the court.
8 (1) A court may make a suppression order or non-publication order on one or more of the following grounds:
(a) the order is necessary to prevent prejudice to the proper administration of justice,
(b) ...
(e) it is otherwise necessary in the public interest for the order to be made and that public interest significantly outweighs the public interest in open justice.
(2) A suppression order or non-publication order must specify the ground or grounds on which the order is made.
11 (1) suppression order or non-publication order applies only to the disclosure or publication of information in a place where the order applies, as specified in the order.
(2) A suppression order or non-publication order is not limited to applying in New South Wales and can be made to apply anywhere in the Commonwealth
13 (1) The court that makes a suppression order or non-publication order may review that order on the court's own initiative or on the application of a person who is entitled to apply for the review.
16 (1) A person commits an offence if the person engages in conduct that constitutes a contravention of a suppression order or non-publication order and is reckless as to whether the conduct constitutes a contravention of a suppression order or non-publication order.
Section 16 goes on to provide that conduct that constitutes an offence under the section may be punished as such an offence or as contempt of court, but not both. It should also be noted that in an application for an order, in a review of any order or on appeal form any order the persons entitled to appear include:-
(a) The applicant for the order,
(b) a party to the proceedings concerned,
(c) ...
(d) a news media organisation,
(e) any other person who, in the court's opinion, has a sufficient interest in the question of whether a suppression order or non-publication order should be made.
In the second reading speech when the Court Suppression and Non-Publication Orders Bill was introduced, the Parliamentary Secretary speaking on behalf of the Attorney-General remarked:
This power (under clause 7) is the legislative sanction that is required to bind all members of the public, not just those who are present at proceedings, an issue that was specifically identified by the New South Wales Law Reform Commission in their Review of the Law of Contempt by Publication,
And, referring to clause 11,
Providing for a broader application of suppression and non-publication orders, is necessary especially in an age of internet news, where a restriction imposed in one jurisdiction only will not prevent that information from being disseminated via a news publication across the world wide web from a source located outside that jurisdiction.
Before stating my understanding of the effects of the Act, it is convenient to mention 2 other matters. In Dow Jones v Gutnick [2002] HCA 56; [2002] 210 CLR 575 the High Court had occasion to consider what was entailed by publication on or via the Internet. The majority observed that such publication was "a bilateral act - in which the publisher makes it available and a third party has it available for his or her comprehension."
The second matter is that prior to the Act there was a deal of authority to the effect that "Courts have no general authority ... to make orders binding people in their conduct outside that courtroom" - see e.g. John Fairfax & Sons Ltd v Police Tribunal (1986) 5 NSWLR 465 at 477 per McHugh J; John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324 at [78], [81].
Having regard to its terms and the other matters to which I have referred, it is clear that the Act was intended to broaden the Court's powers to restrict or prohibit publication of information. Although the inclusion in s 4 of the words "to regulate its proceedings or to deal with a contempt of the court" may operate to limit the express operation of the earlier words in that section, when the totality of the Act is considered, it is impossible to conclude that it was intended not to extend the courts' powers. Provisions relevant in that connection include the references to the Internet, the terms of s 5, and the provision that an order can be made to apply anywhere in the Commonwealth. Arguing in the same direction is the Second Reading speech and the breadth of the terms of the Act against the background of statements such as that which I have quoted from John Fairfax & Sons Ltd v Police Tribunal. It is to me clear that the effect of the Act is to overcomes the limitation on power expressed in those remarks.
It is also inescapable that the Act empowers the Court to make orders without notice to all those who might be affected by such orders. The opposite view would impossibly circumscribe the effect of the legislation. A fortiori is this so when regard is had to specific reference to the Internet in the definition of "publish", and to the nature of that institution of which Parliament can, in 2010, have been expected to be aware. It may be noted that the definition of "publish" embraces conduct extending beyond the actions of someone who uploads material onto the Internet. The definition includes the actions of persons who provide access to such material originally provided by others.
In the result, the Act empowers the Court to make an order prohibiting or restricting the publication in New South Wales (or the Commonwealth) (including by means of the Internet) even if the effect of that order is to limit the actions outside New South Wales of persons who are also located outside this State, or indeed to require them to take actions so as to prevent the further or continued publication in New South Wales of specified information.
Given the existence of the power, how should it be exercised in this case? The above account of the relevant facts makes it clear that the information the subject of the Application is of a nature calculated to prevent the trial of the Accused being fair if it should come to the attention of any member of the jury empanelled to try him. Indeed, there would be little information that could be more damaging to the prospects of a fair trial. Keeping the information the subject of the Accused's application from the jury in his trial is necessary to prevent prejudice to the proper administration of justice.
Before I turn to the question of whether the order sought (or any variation of it) is necessary to prevent that prejudice or should be made, a couple of other points should be made. Firstly, the orders sought, and any which may be made pursuant to the current application, will not restrict the publication of any of the evidence presented, or the course of proceedings, in the current trial. Such orders will not impose any restriction on open justice so far as this trial is concerned.
Certainly, the orders sought are liable to prevent the publication of information concerning the Accused's trials in the past. However, such trials were some years ago. It may reasonably be inferred that anything of significance or general interest has been available over the ensuing period. Given the purpose of the orders presently sought, viz. to prevent prejudice to the current trial, any orders made will be limited in duration, and publication of such information will be able to resume. It is impossible to regard restriction of information connected with those trials for what is likely to be a matter of weeks or a few months hence as of any appreciable significance to the public or damage to the public interest.
In that connection it is worthwhile making the following point. The vast bulk of court proceedings are not reported in the media, ever. One may infer that the decision as to what is reported is made by media organisations, if not exclusively, commonly in what they perceive to be their commercial interests. If as they do, they choose not to make available to the public most of what happens in Court, arguments on behalf of those organisations that the Court should keep nothing from immediate availability to the public (or to the press, though that is not this case) tend to ring very hollow. I venture to repeat part of what I said recently in Bissett v Deputy State Coroner [2011] NSWSC 1182 at [30-32]:-
The expression public interest has a number of connotations. On the one hand there is the public interest, i.e. benefit, in court proceedings being conducted in the open so that decisions can be seen to be rational, the result of evidence and reasoning and the results a demonstration of justice. A further advantage is that those involved in the proceedings know that their conduct is liable to public scrutiny. On the other there is public interest in the sense of the public being interested or curious about a person, evidence or topic who or which is a subject being dealt with in proceedings. Of course, commonly the public interest in both senses will be served in the one report.
Rarely in applications of the nature of that with which I am concerned is attention given to the difference yet I venture to suggest that public interest of the first type I have mentioned is by far the most important. Public interest of the second type is not uncommonly the product of the media itself which chooses what court proceedings and what aspect of any court proceedings will be brought to the public's attention and in fact by ignoring the vast bulk of court proceedings - I venture to suggest well over 99% - contributes to the result that the public hear little of what transpires in courts. ...
The remarks just made are not intended to be a criticism of the media that as businesses have their own interests to serve. The remarks are made simply to put in context the claim that the public interest requires that there be publication. In that connection it is also relevant to bear in mind that the public interest will often not be damaged if publication is delayed. In a situation such as that here the fact that the Coronial inquest was last week rather than a month or two hence is probably the result of the interplay of a number of factors which could easily have been slightly different and delayed the inquest for some time. Had such a delay occurred, then the publication of information from the inquest would have been similarly delayed: it is difficult to see that that if that occurred, there would have been any, or any significant, diminution in public interest.
The, or one of the, principal arguments advanced by Mr Dawson was that the Court could and should proceed on the assumption that jurors would adhere to the instructions which will inevitably be given to them not to conduct any searches on the internet, accompanied possibly by the warning that to so is an offence under s 68C of the Jury Act, rendering any offender liable to 2 years imprisonment. Reference was made also to the invariable instruction to a jury that a case is to be decided on the evidence given in the courtroom.
Certainly there is a wealth of authority to the effect that the Court does commonly, generally or perhaps almost invariably proceed on such an assumption - see e.g. R v Jamal [2008] NSWCCA 177; (2008) 72 NSWLR 258 at [17] - [21] and the cases there cited. However, experience shows that the assumption is not always justified. Decisions in the Court of Criminal Appeal of this State record cases where jurors have conducted their own researches - see e.g. R v K [2003] NSWCCA406; (2003) NSWLR 431; R v Skaf [2004] NSWCCA 37 (2004) NSWLR 86; Folbigg v R [2007] NSWCCA 371. Other cases have concluded that jurors have at times returned compromise verdicts, situations where jurors must have ignored direction given to them.
Given the circumstances in which it has come to light that jurors have disobeyed instructions given to them, it would be unrealistic to think that it has not happened in other cases and will not in the future. It may be that the continuation of the jury system requires that it many cases the assumption be made - see Gilbert v The Queen [2000] HCA 15; [2000] 201 CLR 414 at [31] - but it does not seem to me that it must be made in all cases and that the Court shut its mind to reality.
In this connection, I would adopt the remarks of Price J in R v Perish [2011] NSWSC 1102 at [54]:-
It is well recognised that a trial judge should always do what he or she can in order to protect the rights of the accused to a fair trial and thereby ensure the integrity of its process. The majority in Mokbel observed at [73]:
This confidence in the corporate integrity of juries, however, does not mean that the law should abandon its traditional role of protecting them from events which put this integrity to the test."
Although I accept that the jury will abide by my directions I consider that I should do all that I can to assist them in making their task easier. Notwithstanding the age of the articles, their immediate accessibility on the applicants' websites by keying in the names of the accused causes, in my opinion, a real risk of prejudice to the accuseds' right to a fair trial.
See also Buchanan J in the case mentioned - News Digital Media Pty Ltd v Mokbel [2010] VSCA 51 at [125].
I accept that the majority of the Court in Mokbel [2010] VSCA 51 seemed to think that a juror would not deliberately breach a judge's instruction not to search the internet - see at [94]. However, I do not share their Honour's view with such confidence that I am persuaded that on that account the orders sought in this case are unnecessary. Rather in my capacity as a tribunal of fact do I take the view that there is an appreciable risk. When that risk is combined with the desirability of protecting jurors from events which put this integrity to the test and with the importance fo ensuring that the Accused has a fair trial, there is much to be said for the view that the orders along the lines of those sought should be made. Of course there are other considerations.
The relevant ground for the making of any order in this case is that stated in s 8(1)(b) that "the order is necessary to prevent prejudice to the proper administration of justice". Mr Dawson submitted that a high level of certainty of prejudice to the administration of justice was required before an order could be made and referred to John Fairfax Publications Pty Ltd v District Court of New South Wales [2004] NSWCA 324. I disagree.
The circumstances in respect of which it was laid down in that case that a high degree of certainty was required were when an order would conflict with the principle of open justice. As I have indicated, except insofar as there may be temporary restriction in the continued publication of the Victorian proceedings of years ago, that is not the situation so far as the orders sought in the Notice of Motion are concerned. Rather is the situation one where the words of Price J in R v Perish [2011] NSWSC 1102 at [42] apply:-
The term "necessary" does not have the meaning of "essential", rather it is to be "subjected to the touchstone of reasonableness": Pelechowski v The Registrar, Court of Appeal (NSW) (1999) 198 CLR 435 at 452. The concept as to what reasonably is necessary is to be approached in a common sense way: State Drug Crime Commission (NSW) v Chapman (1987) 12 NSWLR 447 at 452 per Allen J.
The issue of the utility or futility of making the order sought was also raised. After all, the parties served with notice of the application were only some of those who have posted references to the Accuseds' activities in the connections identified in the Notice of Motion. Reference was made by way of example to Wikipedia and it was pointed out that removal by the persons whom Mr Dawson represented, or other Australian media organisations, would not have the effect of removing the information to be found on the Wikipedia website. One submission by Mr Dawson was that the more appropriate persons against whom orders should be made or directed were the proprietors of the search engines by means of which access to any material uploaded onto the Internet could be found.
To some degree this last mentioned submission fails to recognise the operation of the Act as I apprehend it. Subject to any exceptions or conditions to which an order may be made subject, a non-publication order applies to and is binding on anyone who may be affected by its terms. It is not required to be directed to named or otherwise identified individuals prior to being made. Of course, any such person commits no offence unless the person's conduct constitutes contempt of court or falls within the terms of s 16(1). (I would add that although in that sub-section "reckless" is not made an alternative to "deliberate", it would be risky to assume that conduct answering the latter description was not encompassed.)
Thus, as I apprehend the operation of the Act, a non-publication order made in unqualified terms would immediately bind not only the media organisations listed above but also organisations such as the owners of Wikipedia, Google and the other search engines but they would commit no offence until notified of the order and guilty of conduct otherwise constituting contempt of court or a breach of s 16(1).
In this connection reference should also be made to Sections 10A et seq. of the Crimes Act 1900. So far as presently relevant they provide:-
10A(1) This part applies to all offences.
(2) This Part extends, beyond the territorial limits of the State, the application of a law of the State that creates an offence is there is the nexus required by this Part between the State and the offence.
10C(1) If
(a) all elements necessary to constitute an offence against a law of the State exist (disregarding geographical considerations), and
(b) a geographical nexus exists between the State and the offence,
the person alleged to have committed the offence is guilty of an offence against that law.
(2) A geographical nexus exists between the State and an offence if:
(a) the offence is committed wholly or partly in the State (whether or not the offence has any effect in the State), or
(b) the offence is committed wholly outside the State, but the offence has an effect in the State.
Publication within New South Wales is obviously a geographical nexus and organisations such as Wikipedia and Google will commit an offence against New South Wales law if in the circumstances envisaged by s 16(1) they breach any order I make.
I return to the issues of utility and futility. If all persons responsible for the placing of, or access to, information on the Internet obey an order for no continued publication in New South Wales, then clearly such an order will have utility. It only the search engines do so, the order is still likely to very greatly reduce the possibility of a juror having access to any information to be found on the Internet. One may take judicial notice that most general access to the internet is obtained via search engines. It may also reasonably be inferred that much of the information placed on the Internet by media organisations was placed there by the media organisations given notice of this application and that if they also remove such material as they have placed there, the chances of a juror having access will also be reduced. One does not need search engines to visit media web-sites. Of course it must be recognised that there are others who have placed such information there - Wikipedia, the owners of other websites named within the 2 pages of Google searches done by Mr Reslan, and no doubt many others. There is no reason to think that responsible organisation or entities within that group will not, if given notice of any order and the penalties for disobedience, take steps to remove the entries they have made although it would be unreal to expect that all authors will necessarily do so. Thus it seems to me that I must proceed on the basis that any order by me will not achieve removal of all prejudicial information. Though it is also fair to remark that I have not, and I suspect many others have not, heard of some of the sources of Internet entries revealed by Mr Reslan's Google search.
I do not think that it would be proper to infer that if an order is made it will not be complied with by the Australian media organisations and the three search engines I have named. Others to whom notice of an order is given will be at substantial risk if they do not comply. In that situation it seems to me that an order is likely to have utility and significantly reduce the likelihood of any juror who chooses to disobey an instruction not to look up the Internet finding any significant information.
Mr Dawson also submitted that an order was unnecessary as any publication would be likely to be covered by the law of contempt. That may well be so in the case of fresh publications but matters already uploaded onto the Internet would not, without more, fall within the breadth of that doctrine.
Some other matters should be mentioned. Counsel for the Accused indicated that it was only publication in New South Wales that was sought to be restrained although he recognised that it might well be more convenient to anyone forced to comply with such a restraint to cease publication anywhere in Australia.
Mr Dawson also asserted that the respondents for whom he appeared operated many different web sites, that the effort involved in removing any references to archived material would be substantial and the results likely to be imperfect. He pointed out that his clients had had very short notice of the Application. The topic was left on the basis that while I was disinclined to regard difficulty in complying as a reason for not making an order in the absence of evidence in that regard, I would probably allow some, though limited, time for further submissions or evidence in that connection - see T28, 55 and 76. The topic may be further pursued when or after I publish these reasons.
Without pre-empting my decision on that topic I would add this. One may take judicial notice of the fact that the Internet is re-indexed at least daily. Given the search facilities that are available and how much can be achieved with a few clicks of buttons, it does not seem to me that, providing some days are allowed for compliance with an order, it will impose an unduly onerous burden on search engines. Given that the jury in the trial will not have notice of any involvement with the Accused until Monday next either when they attend court or, at the earliest, read the Law Notices in the Sydney Morning Herald, but that those acting for the Accused should have some chance before then to ascertain the impact of my orders, it seems appropriate to allow until, say Friday next at 9 am Eastern Australian Daylight Saving Time for matters currently on the Internet to be deleted or made inaccessible.
I should also refer to the fact that the current application has been made very late. The Accused's trial was set down months ago and the Application could have been made at any time within those months. Instead, the Notice of Motion was filed, as I have said, on 17 October, albeit it was foreshadowed some short time previously. The delay argues against the making of the orders that the Accused seeks but, particularly as there has been opportunity for opposition and there still remains a short time for more, and for compliance with the orders I propose to make (providing those acting on behalf of the Accused serve notice of them promptly), and because of the desirability of the trial proceeding and the degree of prejudice I am trying to prevent, it is proper to make orders now. I bear in mind also the provisions of the Act that permit reconsideration of the orders.
In the result, I am satisfied that order along the lines of those sought by the Accused should be made. I am satisfied that such orders are necessary to prevent prejudice to the proper administration of justice. I am also satisfied that it is necessary in the public interest for the orders to be made and that public interest significantly outweighs the public interest in open justice. Section 12 of the Act requires that there be specification of the period for which any order is to operate and that that may be by reference to the occurrence of a specified future event. One possibility to would be to identify the jury's verdict in the current trial as that future event. However, I have already had to discharge one jury and there is the potential to have to do that again. The trial may have to be adjourned. Given the obvious desirability of some flexibility, the specified future event should be "further order". I make it clear that I contemplate that the orders will be dissolved once a verdict on the charge of murdering Ms Hicks is obtained.
There is one further matter with which I must deal. Although the Notice of Motion did not ask for this relief, the application with which I am dealing is one where publicity of it in any way would be calculated to prejudice the Accused's forthcoming trial. In the course of argument Mr Dawson suggested that any publicity in connection with the Application would so obviously be contempt of count that one could be confident reference to it in the media would not occur. He may be right but it seems to me that the matter should be put beyond doubt. Accordingly, I propose to make further orders directed to ensuring that lack of publicity. I acknowledge that in this connection, I am required to hold a high degree of certainty that it is necessary to make a non-publication order to prevent prejudice to the proper administration of justice in relation to this Application. I hold that degree of certainty.
Accordingly, subject to any matters of detail as to the form of the orders and the matters referred to in [47] above, it seems to me that I should make orders in the following terms:
1 Upon the grounds that:-
(A) this order is necessary to prevent prejudice to the proper administration of justice, and
(B) it is necessary in the public interest for the orders to be made and that public interest significantly outweighs the public interest in open justice,
I order that, on and after 9am Eastern Australian Daylight Saving Time on Friday 28 October and until further order, there be no publication (within the meaning of the term "publish" as set out below) within New South Wales of information to the effect that:
(i) Bandali Debs murdered any police officer;
(ii) Bandali Debs has previously been convicted of murdering any police officer;
(iii) Bandali Debs murdered Kristy Harty;
(iv) Bandali Debs has previously been convicted of murdering Kristy Harty;
(v) Bandali Debs is presently serving sentences of imprisonment in Victoria.
(vi) Bandali Debs was the subject of a television program aired by the Nine Network on 7 February 2011, entitled "Underbelly Files: Tell Them Lucifer was Here";
(vii) DNA of Bandali Debs has been included in any Victorian DNA Database;
(viii) DNA of Bandali Debs has been included in any National Crime Investigation DNA Database.
(ix) DNA obtained from Bandali Debs is said to match DNA retrieved from the crime scene where Kristy Harty's body was discovered.
NOTE:- publish means disseminate or provide access to the public or a section of the public by any means, including by:
(a) publication in a book, newspaper, magazine or other written publication, or
(b) broadcast by radio or television, or
(c) public exhibition, or
(d) broadcast or publication by means of the Internet.
2 Upon the grounds that:-
(A) this order is necessary to prevent prejudice to the proper administration of justice, and
(B) it is necessary in the public interest for the orders to be made and that public interest significantly outweighs the public interest in open justice,
3 I order that, until further order, there be no publication (within the meaning of the term "publish" as set out below) within New South Wales of information as to the fact of the Application the subject of these orders, of the evidence or arguments incidental to the Application, of the orders made (including this order) or of the reasons given in connection with the Application.
NOTE:- publish means disseminate or provide access to the public or a section of the public by any means, including by:
(a) publication in a book, newspaper, magazine or other written publication, or
(b) broadcast by radio or television, or
(c) public exhibition, or
(d) broadcast or publication by means of the Internet.
12 December 2011 - further order
A further order concerning publication was made on 12 December 2011 as follows:-
I revoke as from this minute, the non-publication orders made by me on 24 October 2011.
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Decision last updated: 29 March 2012
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