R v Heriban & Brunner

[2005] VSC 76

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1491 of 2004

THE QUEEN

v

MICHAEL STEPHEN HERIBAN AND
KURT JOSEPH BRUNNER

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JUDGE:	WHELAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 March 2005
DATE OF RULING:	23 March 2005
CASE MAY BE CITED AS:	R v Heriban and Brunner
MEDIUM NEUTRAL CITATION:	[2005] VSC 76

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CRIMINAL LAW – Application for order permitting retention of forensic samples –
s 464ZFB(1) Crimes Act 1958.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr K. Gilligan	Solicitor for the Office of Public Prosecutions
For the Accused Heriban	Mr M.A. Fullerton	Tyler Tipping and Woods
For the Accused Brunner	Mr J.D. Montgomery	Robert Davis

HIS HONOUR:

1. In this matter the Crown has applied under s 464ZFB(1) of the Crimes Act 1958 for an order permitting the retention of forensic samples obtained with the consent of the accused Michael Heriban on 26 June 2003, and with the consent of the accused Kurt Brunner on 25 June 2003.

1. Counsel for Mr Brunner told me the application in relation to his client was not opposed. 

1. Counsel for Mr Heriban opposed the application.  He relied upon two decisions of Harper J, R v Abebe[1] and R v Lagona.[2]  He submitted that something more than the mere fact of a conviction was required before an order was warranted and that there was nothing more here.  Reference was also made to the decision of Nettle J in Pavic v Magistrates’ Court of Victoria.[3] 

   [1][1998] VSC 214.

   [2][1998] VSC 220.

   [3][2003] VSC 99.

1. Mr Gilligan for the Crown submitted that the order sought ought to be made.  He relied upon the seriousness of the offence, the circumstances of the offence, and upon the involvement of alcohol in both the offence and Mr Heriban’s prior convictions. 

1. Section 464ZFB(1) provides that where a forensic procedure has been conducted on a person and a court finds the person guilty of a relevant offence, an application may be made for an order permitting retention of the sample. A court hearing such an application must take into account the seriousness of the circumstances of the offence and must be satisfied that, in all the circumstances, the making of the order is justified: s 464ZFB(2).

1. Abebe and Lagona each concerned applications under s 464ZF(2). No submission was made that different considerations ought to apply under s 464ZFB(1). Given that position, I will proceed on that basis.

1. It seems to me that Abebe and Lagona do not stand for the proposition that evidence of matters in addition to the circumstances of the offence itself must be led before an order can be made.  Whilst it is correct, as those cases make clear, that a mere conviction in itself is not sufficient, an order may be justified in a particular case by the seriousness of the offence itself and the circumstances in which it occurred.  The issue in every case is whether the order is justified, and in considering that issue the court must take the seriousness of the circumstances of the offence into account. 

1. Observations made by Nettle J in Pavic remain of relevance, notwithstanding the legislative response to that decision.[4]  As Nettle J pointed out, the provisions constitute a significant invasion of the subject’s privacy and must be approached accordingly. 

   [4]See Crimes (Amendment) Act 2004 No. 41/2004 and Victoria, Parliamentary Debates, Legislative Assembly, 13 May 2004, 1335-6 (Robert Hulls, Attorney-General).

1. In my view, the seriousness of each of these offences and the circumstances in which they occurred justify the making of the order sought in each case.  Mr Heriban, whilst intoxicated, took it upon himself to punish a burglar.  He assaulted him twice.  His actions resulted in the burglar’s death.  Mr Brunner drove that person, who he believed to be injured, not to a place where he might obtain assistance but to a bush track where he was abandoned.  Mr Heriban has a prior history of alcohol-related offences.  Mr Brunner has a long prior criminal history which includes prior offences of violence.  In my view, the order sought is justified in each case by the seriousness of the offences, and the circumstances in which they occurred, together with, in Mr Heriban’s case, his prior history of alcohol-related offences, and in Mr Brunner’s case, his long prior criminal history and the fact that he does not oppose the application.

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