R v Debs

Case [2008] VSCA 240 3 December 2008

Type to search within this case.

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 179 of 2007

THE QUEEN
	v
BANDALI MICHAEL DEBS

---

JUDGES:	Vincent, Neave and Weinberg JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 August 2008
DATE OF JUDGMENT:	3 December 2008
MEDIUM NEUTRAL CITATION:	[2008] VSCA 240

---

CRIMINAL LAW – Conviction – Murder – Circumstantial evidence – Admissibility – Revolver and ammunition of same kind as those used to murder victim and other firearms found at house occupied (or once occupied) by applicant’s mother – Whether trial judge erred in allowing admission of evidence of revolver and ammunition of kind used to commit offence – Whether judge erred in allowing admission of evidence of other firearms – Whether jury given proper directions regarding use to which evidence could be put – Whether admission of evidence gave rise to a miscarriage of justice – Application dismissed.

CRIMINAL LAW – Sentence – Applicant sentenced to life imprisonment with no minimum term – Whether sentence manifestly excessive – Whether trial judge erred in not setting a minimum term – Application dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J D McArdle QC	Mr S Ward, Acting Solicitor for Public Prosecutions
For the Applicant	Mr C B Boyce	Victoria Legal Aid

VINCENT JA

NEAVE JA
WEINBERG JA:

The applicant, Bandali Michael Debs, was convicted in the Supreme Court, at Melbourne, of the murder of an 18-year-old girl, Kristy Mary Harty. He was sentenced to life imprisonment with no minimum term. He now seeks leave to appeal against both his conviction and sentence.

The facts

At about 8.40 am on 18 June 1997, two women walking their dogs on a dirt track running off the Beaconsfield-Emerald Road, Upper Beaconsfield, saw a large pool of blood on the track and called the police.

The body of the victim was found lying in the bush some distance away from the side of the track. She was dressed in a skirt and top. Her underpants were wrapped around her feet and entwined with a tree branch. All but the top button of the six buttons on the front of her short skirt were undone.

The victim had been killed by a single gunshot to the left side of the top of her head, towards the back, at close range. Dr Michael Burke, a Senior Pathologist at the Victorian Institute of Forensic Pathology, testified that the injury was consistent with the right side of her face being against the ground when she was shot. The victim had an abrasion to the left side of her nose, and an injury to her upper lip, caused by the application of blunt force and an injury to the right of her forehead.

A fired bullet and a piece of bone were found close to each other on the edge of the pool of blood. The fired bullet was a .357 Magnum solid lead semi-wadcutter bullet with copper plating. A piece of paper with Dandenong Hospital written on it, an unopened packet 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 [2008] VSCA 240
Case: [2008] VSCA 240
Decision Date: 3 December 2008

CaseChat Overview and Summary

Debs sought to appeal against his conviction and sentence for murder. The appellant was convicted for the murder of an individual, with the conviction based largely on circumstantial evidence. The evidence included the discovery of a revolver and ammunition of the same kind used in the murder, as well as other firearms, at a house occupied by the appellant’s mother. Debs argued that the trial judge erred in admitting evidence of the revolver and ammunition, as well as the other firearms, and that this led to a miscarriage of justice. He further argued that the judge failed to provide adequate directions to the jury regarding the use of this evidence. Finally, Debs contended that his sentence of life imprisonment with no minimum term was manifestly excessive, and that the judge erred in not setting a minimum term.

The court considered whether the trial judge erred in admitting evidence of the revolver, ammunition and other firearms, and whether the judge failed to adequately direct the jury. The court found that the trial judge did not err in admitting the evidence, as it was relevant to the circumstances of the crime and the appellant’s involvement. The court also found that the judge provided adequate directions to the jury, and that the evidence did not give rise to a miscarriage of justice. Furthermore, the court considered whether the sentence was manifestly excessive and whether the judge erred in not setting a minimum term. The court found that the sentence was not manifestly excessive, and that the judge did not err in not setting a minimum term.

Debs’ application for leave to appeal was dismissed. The court found that the trial judge did not err in admitting evidence of the revolver, ammunition and other firearms, and that the judge provided adequate directions to the jury. The court also found that the sentence of life imprisonment with no minimum term was not manifestly excessive, and that the judge did not err in not setting a minimum term. Therefore, the conviction and sentence were upheld.

No orders were made as the application for leave to appeal was dismissed.

Orders