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[2003] VSC 488
respondent. The originating motion was dismissed, and the plaintiff was ordered to pay the first defendant’s costs, including reserved costs.
A magistrate ordered a man charged with murder to provide a mouth swab. The Supreme Court held that the statutory test was whether the swab might tend to confirm or disprove his involvement, not whether it was likely to help prove the prosecution case. The materials before the magistrate were enough to make that decision open. The challenge also failed because counsel did not ask to answer the prosecutor's point, and because the magistrate's reasons adequately referred to the evidence. The review application was dismissed and costs were ordered against the plaintiff.
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2,118 words · generated 02/10/2026
In Marks v Buick & Anor [2003] VSC 488, Hansen J considered an application to review a magistrate's order requiring Matthew Marks to undergo a compulsory mouth swab under s.464T of the (Vic). The order was made on 13 November 2003. Marks's originating motion sought to have it set aside, and the person who had obtained the order undertook not to enforce it until the Supreme Court had heard the challenge [1]-[3].
No linked legislation citations have been extracted yet.
Marks had been committed for trial on one count of murdering Margaret O'Toole. She was found dead at her East Malvern unit on 17 May 2002. The post-mortem examination indicated that she had been struck repeatedly to the head and throat with a blunt instrument [4]. Investigators had collected three items: a swab from a couch in O'Toole's unit (sample A), scissors taken from Marks (sample B), and a swab from the floor of Marks's bedroom (sample C). Testing indicated that the samples had a uniform profile, but that profile was not O'Toole's [5].
Investigators requested a mouth swab from Marks under s.464R on 29 October 2003. He refused, after which Detective Senior Constable Buick applied to a magistrate for an order under s.464T [6]. The magistrate granted the application.
The Supreme Court challenge advanced three related complaints. First, Marks argued that the magistrate had not properly addressed s.464T(3)(f), including whether there were reasonable grounds to believe that the procedure might tend to confirm or disprove Marks's involvement in the offence. Second, he argued that he had not received natural justice because his counsel did not have an opportunity to answer a point raised by the prosecutor. Third, it was argued that the magistrate had failed to state the evidence supporting satisfaction of the statutory matters, as required by s.464T(7)(b) [2], [8]-[11], [16].
Hansen J dismissed the originating motion. The order was that the proceeding be dismissed and that Marks pay the first defendant's costs, including reserved costs [17]-[18].
The central statutory question was the meaning and application of s.464T(3)(f). Hansen J described the requirement as satisfaction, on the balance of probabilities, that there were reasonable grounds to believe conducting the procedure on the person “may tend to confirm or disprove” their involvement in the offence [12]. The judge emphasised that “may” set a possibility threshold. It did not require a finding that the procedure would, must, or probably would have that effect [12].
That distinction answered a substantial part of Marks's argument. His counsel contended that the evidence did not show how the mouth swab would advance the Crown case. The samples' profile was not the deceased's, and the evidence included that Marks was related to the deceased and had said he had been at her home in the days before her death [11]. On that view, a match might be neutral to the prosecution case. Hansen J considered that this focused too narrowly on trial utility. The statutory question was not whether the result could be predicted to be admissible or helpful to the Crown at trial. It was whether the test might tend to confirm or disprove involvement [14].
The magistrate's reasons referred to the possibility that the samples might belong to someone known to Marks. The judge accepted that the prosecutor's proposition was hypothetical, but regarded it as an obvious possibility in the circumstances. More broadly, the magistrate had heard evidence about the background, collection and testing of the samples. Hansen J found it open to the magistrate to assess the materials objectively and reach the required view [12]-[14]. This is a case-specific conclusion about the material described in the judgment, not a general statement that any speculative possibility will meet the statutory threshold.
The natural-justice argument failed for a different reason. Hansen J assumed, without deciding, that procedural fairness required a reasonable opportunity to address an opponent's point. But after the prosecutor made the submission, counsel did not ask to respond before the magistrate adjourned, or when the magistrate returned to give reasons [15]. On that record, the judge rejected the claim that the magistrate had denied fairness.
Finally, the judge held that s.464T(7)(b) had been met. The magistrate referred to the evidence, explained the treatment of the s.464T(3)(f) issue, and incorporated his reasons into the order [12], [16]. Hansen J considered that this was sufficient to state the evidence on which the magistrate had been satisfied.
The judgment records a statutory process under s.464T for an order requiring an adult to undergo a compulsory procedure. It also records the related request under s.464R, which investigators had made before seeking the order [6]. The judgment does not set out the full text of either provision. Its analysis is specifically directed to s.464T(3)(f) and s.464T(7)(b).
On s.464T(3)(f), Hansen J's explanation is that the court must assess whether there are reasonable grounds to believe the procedure may tend to confirm or disprove involvement. The test is not whether the procedure will or probably will do so [12]. The judgment therefore treats the provision as an investigative threshold, even though Marks had already been charged and committed for trial. The trial had not yet occurred [12].
The decision also distinguishes that statutory inquiry from a prediction about trial admissibility or prosecution value. The judge said those were not decisive; the statutory question remained whether the test might tend to confirm or disprove involvement [14]. This is the principal clarification the judgment offers for applying the words set out in the case.
The judgment does not purport to reformulate the wider law of certiorari or the meaning of “the record”. Hansen J noted that the application materials included the application, affidavit, order and a tape of the proceeding incorporated by reference. He explained that the magistrate's reasons referred to evidence whose content had to be understood to make sense of those reasons [7]. But the judge expressly said that it was unnecessary to resolve fine distinctions about what was included in the record, because the outcome did not turn on them [7]. Accordingly, Marks should not be read as deciding a comprehensive rule about the record for judicial review.
Nor does the judgment establish a new general rule about procedural fairness where a statute permits submissions. Hansen J put aside the argument that the distinctive procedure under s.464T(5) might affect whether the ordinary fairness principle applied. He assumed fairness applied for the purpose of deciding the point, then rejected the claim because counsel had not sought an opportunity to respond [15]. That limited approach matters when describing what the case decided and what it left unresolved.
At [12], Hansen J stated that it was “sufficient that the conduct of the procedure may tend” to confirm or disprove involvement, and expressly said this did not mean that it “will”, “must” or “probably will” do so. In plain English, the magistrate did not need to predict the result or find that a particular result was more likely than not. The magistrate had to be satisfied that there were reasonable grounds for the stated possibility.
At [12], the judge also observed that a positive or negative result might emerge and that “it does not matter”. Read in context, this means the statutory inquiry did not depend on assuming in advance that the test would produce a result favourable to one side. The point was its possible tendency to confirm or disprove involvement.
At [14], Hansen J said: “Admissibility, let alone a prognostication as to it, is not the decisive issue in my view.” The plain-English point is that a magistrate applying s.464T(3)(f) did not have to decide in advance whether the result would be admitted at trial. The immediate question was the possible tendency identified in the section.
At [15], the court noted that Marks's counsel did not seek an opportunity to answer the prosecutor's proposition, either before the magistrate left to consider the decision or when he returned. In ordinary language, the fairness argument was undermined by the absence of a request to speak at the time. The judge did not decide whether the special statutory procedure otherwise changed the fairness obligations.
At [16], Hansen J held that the magistrate had stated the relevant evidence through references to it, the way he addressed the s.464T(3)(f) contention, and incorporation of his reasons in the order. This indicates that, on these facts, the statutory requirement did not demand a recital of every evidentiary detail.
The judgment is most directly relevant where a magistrate is considering a compulsory procedure under s.464T and the dispute concerns whether the procedure might tend to confirm or disprove an accused person's involvement. The facts here involved forensic samples with a matching profile that was not the deceased's, a refusal to provide a requested mouth swab, and a prosecution for murder that had not yet gone to trial [4]-[6], [12].
It may be relevant where a party argues that a requested test is not useful because its result may not assist the prosecution, or because its admissibility at trial is uncertain. Marks says those considerations do not replace the statutory question [14]. The decision does not, however, determine that every proposed procedure satisfies the test merely because a possible investigative use can be imagined. Hansen J relied on the particular evidence and held that the conclusion was open on the materials before that magistrate [12]-[14].
The decision is also relevant to a challenge alleging that a party was not given a chance to answer an opposing submission. The procedural detail matters: counsel did not request an opportunity to respond at either available point identified by the judge [15]. The case therefore concerns a failure to request an opportunity in that hearing, rather than a situation in which a request was made and refused.
A further potentially relevant pattern is a complaint that an order does not state the supporting evidence. The judgment addressed that question where the magistrate referred to the evidence, discussed the contested statutory criterion and incorporated reasons into the order [12], [16]. The decision should be applied with attention to those features rather than treated as a ruling on every possible form of reasons or record.
The judgment supplied here does not contain any account of later cases applying, distinguishing, approving or criticising Marks v Buick. It identifies two earlier authorities as submissions referred to by counsel: O'Sullivan v Victoria Police [2003] VSC 45 and Ellis v Stevenson and The Magistrates' Court at Melbourne (1996) 86 A Crim R 368 [9]. Hansen J does not provide a detailed account of either case's reasoning in the text supplied, nor does the judgment state that either authority was followed or distinguished.
Accordingly, no conclusion about later judicial treatment can be drawn from this judgment alone. The case's own stated reasoning can be described: its interpretation of “may tend” in s.464T(3)(f), its treatment of a trial-utility objection, and its conclusions on fairness and s.464T(7)(b) [12]-[16]. Whether later courts have adopted or qualified those points requires later source material, which is not included here.
Several matters were expressly left undecided or are not resolved by the text. First, Hansen J did not determine the general boundaries of “the record” for certiorari. He identified the relevant materials and the order's incorporation of the magistrate's reasons, but said that resolving fine distinctions about the record was unnecessary [7].
Second, the judgment did not decide whether the unique procedure in s.464T(5) altered the ordinary procedural-fairness analysis. The judge put that issue aside and assumed, for the purpose of the argument, that fairness required a reasonable opportunity to address the opponent's point [15]. The result rested on counsel not seeking that opportunity.
Third, the decision did not determine how far a magistrate must explain the evidentiary basis for each matter in s.464T(3) in different circumstances. It held that the references and explanation made in this case, together with incorporation of the reasons in the order, satisfied s.464T(7)(b) [16]. It did not prescribe a universal minimum format.
Finally, the decision's view that the prosecutor's hypothetical was an obvious possibility should be read against the actual evidence and the procedural posture. The judgment does not say that unsupported speculation alone is enough. Its conclusion was that the magistrate could take account of all the material before him and that the statutory possibility threshold was met on that record [12]-[14].
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[2003] VSC 488
JUDICIAL REVIEW - To quash order that a person undergo a compulsory procedure - Mouth swab on a person charged with murder - Requirement of reasonable grounds to believe that the conduct of the procedure may tend to confirm or disprove the subject person's involvement in the commission of the offence - Evidence - Whether error of law on face of the record - Order incorporated transcript - Crimes Act 1958, s.464T(3)(f).
1 Only last week, on 13 November, did a magistrate have before him an application for an order directing an adult person to undergo a compulsory procedure under s.464T of the Crimes Act. The magistrate made an order that the procedure, being a mouth swab, be conducted. The matter was mentioned to me on 17 November, when the applicant who obtained the order undertook not to enforce it until the hearing of an originating motion, upon which I have heard argument today.
2 The originating motion is by way of a proceeding under Order 56 of the Supreme Court Rules. It seeks, in terms not as directly expressed, that the order be set aside and states two grounds. They are, one, that the magistrate erred in granting the order in that he failed to consider the requirements of s.464T, in particular the provisions of para.(f) of sub-s.(3); and, secondly, that he erred in denying the plaintiff natural justice on the basis that he was not informed of the evidence proposed to be led by the prosecution, which evidence directly impacted on the exercise of the magistrate's discretion pursuant to sub-s.(3).
3 The course of argument has better identified the points that are relied upon under the second ground. Basically, that ground, as I apprehend it, contends that, after counsel for the respondent addressed the magistrate pursuant to the right to do so contained in sub-s.(5), the magistrate heard from the solicitor appearing to prosecute and retired to consider his decision without hearing further from counsel on the point that was then made, and came back and gave his decision, still without hearing from counsel for the respondent on that point. Furthermore, I think, it is said that the point made by the prosecutor was one upon which no evidence had been given and which could not be relied upon in the absence of such evidence. That is an outline of the application that has been made.
4 The Magistrates' Court application is dated 13 November 2003. The applicant for the order is Detective Senior Constable Boris Buick. The respondent is Matthew Joseph Marks. He has been committed for trial on one count of murder of Margaret O'Toole, who was found deceased in her unit in Sorell Street, East Malvern on 17 May 2002. It was found on post mortem examination that she had been killed by being struck repeatedly to the head and throat with a blunt instrument.
5 Those facts are referred to in the affidavit sworn by the applicant in support of the application. The affidavit refers also to three items which have been taken by the investigating police, and they are referred to in the affidavit and in the evidence and submissions before the magistrate as samples A, B and C. Sample A is a swab of material located on a couch at the deceased's unit, sample B is a pair of scissors taken from Marks's possession, and sample C is a swab of material located on the floor of Marks's bedroom at his address. The evidence indicates that the samples, which have been tested, apparently sample A having been tested at a time subsequent to samples B and C, indicate a uniform profile but the profile is not that of the deceased.
6 On 29 October 2003 investigators requested a mouth swab from Marks pursuant to s.464R of the Crimes Act. The request was refused. That gave rise to the application made to the magistrate.
7 I have referred to the evidence in the affidavit and I will refer to evidence that was before the magistrate. I say that because I am cognisant that this is an application for relief in the nature of certiorari, in particular on the ground of error of law on the face of the record. I have been referred to a number of cases which address the principles applicable to the availability of the remedy, including what is meant by the expression "the record". I find it unnecessary in the resolution of this case to refer to those principles. A particular feature of this case is that the materials comprising the application are the application itself and the short affidavit in support, and then there is the order recorded in the records of the court which incorporates by reference the tape of the proceeding. It does so by reference particularly to the reasons of the magistrate contained on the tape, but those reasons themselves refer to the evidence without any deal of elaboration, and to understand what is being said by the magistrate one must attend to the evidence itself. It was for those reasons that I said to counsel in the course of argument that I thought that, subject to anything they may say, in the end the resolution of this case did not turn on any fine distinction as to what was and what was not to be included in the record for the purpose of the remedy.
8 In the circumstances that the respondent to the application, Marks, has been charged with murder and has been committed for trial, counsel for Marks sensibly and correctly, both before the magistrate and me, focused attention only upon para.(f) of sub-s.(3) of s.464T, in terms of contending that there was error in respect of that element. She also addressed a submission as to whether the magistrate had complied with para.(b) of sub-s.(7), but that raises a different issue. It was said by counsel that there was both an error of law on the face of the record and a denial of natural justice. That much in outline is apparent from the grounds of relief stated in the originating motion, but in the presentation of argument counsel for the plaintiff raised what seemed a new point concerning the failure of the magistrate to comply with the requirements of sub-s.(7)(b). That was that he did not state the evidence on which he was satisfied of the matters referred to in sub-s.(3).
9 I deal now with each basis of relief. As far as error of law on the face of the record is concerned, this was, if I may refer to it summarily, put in this way. It was said, in relation to para.(f), that the evidence before the magistrate did not cover all aspects of the section; that it did not disclose the grounds upon which the element in para.(f) might be considered satisfied; and it did not disclose grounds as to why, in respect of para.(f), the procedure was necessary. The submission was developed by reference to the decision earlier this year of Ashley, J. in O'Sullivan v. Victoria Police[1] and to another case, a decision of the Court of Appeal in Ellis v. Stevenson and The Magistrates' Court at Melbourne[2].
10 Essentially, as I understood it, the contention is that there was no material before the magistrate on which he could have been satisfied as to the element in para. (f). There was a lack of evidence. All that the magistrate had was an assertion. This I think was an assertion that appears in the transcript of the proceeding as having been made by Mr Cecil, who appeared for the prosecution, when he said: "What if the defence is raised that it wasn't the respondent who committed the act, but somebody that he knows who did." That is the statement that I mentioned earlier in relation to which counsel for the plaintiff said she had not had an opportunity to respond before the magistrate gave his decision.
11 In the course of her submission today, counsel developed the matter of the lack of evidence that was before the magistrate. I take account of all that was said but summarise as follows. In particular, there was said to be a lack of evidence in terms of satisfying para. (f) It was not disclosed that the analysis of sample A had been carried out after the analysis of samples B and C. That evidence, it was said, would have enabled the magistrate to determine what had changed since the initial testing and gave rise to the application. Then, it was said, there was a lack of evidence as to the relationship between the deceased and the defendant. It was stated in the oral evidence that there was a family relationship between the deceased and Marks; it was believed the deceased was a great aunt to Marks. The Crown case is that the defendant admitted going to the deceased's home in the days before her death. That might be expected. In the circumstances the evidence of the test would remain neutral to the Crown case. Thus the test, if conducted, would not have the tendency to confirm or disprove the involvement of Marks in the commission of the offence. The result is that there were no reasonable grounds for the belief required to satisfy para. (f). I may not have done full justice to the way in which counsel so competently addressed her submission, but I think that is the essence of it.
12 In the first instance one has to attend to the section itself. It required the magistrate to be satisfied on the balance of probabilities of a number of things. As I have said, it is only the element in para. (f) that is said to suffer from an error of law in the magistrate's decision. It requires satisfaction that there are reasonable grounds to believe that the conduct of the procedure on the person may tend to confirm or disprove his or her involvement in the commission of the offence. This the magistrate is, in my opinion, entitled to consider regarding the evidence before him objectively, and it is important to note that it is sufficient that the conduct of the procedure may tend, not that it will, not that it must, not that it probably will, but merely that it may tend to confirm or disprove the involvement of the subject person in the commission of the offence. A positive or a negative might come out of the test. It does not matter. It is, as Mr McArdle correctly observed, in my view, an investigative tool, notwithstanding that in this case Marks has already been charged with murder. But the trial has not yet occurred. Moreover, it is a very difficult thing, I think, and it certainly is in the circumstances of this case, to speculate or hypothesise as to the reason or reasons why, in the future, depending on the result of the test, it may be said of it that it may tend to confirm or disprove his involvement. That is not to say that it can not be said now that it may have that consequence. It is rather to say that it is difficult to hypothesise or speculate as to a particular reason why it will have that consequence. The magistrate was rather pressed in that way in the submissions made to him, and in that way, I consider, the submissions were not correctly put in terms of reflecting the issue in para. (f). In the end the magistrate, having retired to consider his decision, returned and in the reasons which he gave and which are contained in the transcription which has been typed and is before me and which is incorporated by reference in the order, he referred to the evidence which had been given on oath by a member of the Homicide Squad. He did not recite that evidence. Plainly enough it was given also in relation to the matters referred to in the affidavit in support. The evidence was of very short compass indeed, and it seems to me to be somewhat artificial to say that in addition to the magistrate saying that he had heard evidence on oath from the witness setting out the circumstances and the background to the application and in relation to the obtaining of the samples and their analysis, and that they had been shown to be not from the deceased, that it was necessary for him to refer to everything said in the evidence. He referred to the evidence in a summary way and in a way that indicates to me that he considered all of the evidence. He then went on and referred to the section and to the various sub-sections, and in particular to para. (f), and he did so in terms which clearly indicate that he had that paragraph and the requirement of it in mind. He said this towards the end of his reasons:
"I put to Mr Cecil for the Crown the proposition that the obtaining of a positive match by way of the DNA test would not advance the prosecution cause. He put to me a proposition whereby it is discovered, hypothetically, that on the conduct of the test that is currently sought under this application it is confirmed that the samples do not belong to the defendant and that the samples may belong to somebody known to him. If that proposition came to fruition, that evidence `may tend to confirm or disprove his involvement in the commission of the offence'. And on the basis on that general power, that is the balance of probabilities, and that interpretation of sub-section (f), I do propose to grant the application."
He then went on to say that the reasons would be incorporated in the record of the court.
13 Mr McArdle said, well, in what he said there, he may or may not have been correct in the sense that he may have said something that might, on an appeal as distinct from review by prerogative process, have committed an error, but it could not be said, he submitted, that he had not considered the evidence, not considered the relevant paragraph, or that he had misapplied it. He was, in short, entitled to come to that conclusion, even if it might be said in an appeal sense that it was infected by error.
14 I think it is too artificial a point to submit, as counsel for the plaintiff did, that there was a want of evidence, a failure of any materials before the magistrate that could have led him to the conclusion that para. (f) could be considered satisfied. I do not agree. The magistrate was entitled to take account of all of the materials that he had before him and to consider whether, on those materials, he was satisfied, on the balance of probabilities, that there were reasonable grounds to believe that the conduct of the procedure on the person may tend to confirm or disprove his or her involvement in the commission of the offence. The error, I think, at least in part, in the submission is in the attempt it makes to demonstrate a lack of utility in the test in terms of aiding the Crown case at trial. Admissibility, let alone a prognostication as to it, is not the decisive issue in my view. It is whether the test may tend to confirm or disprove. It seems to me that it was open to the magistrate to conclude as he did that there were reasonable grounds in terms of para. (f). In a way, it seemed to me, as I said in the course of argument, that the statement that Mr Cecil made and which I quoted earlier was in a sense a statement of an obvious possibility. Even if the magistrate's reliance on that statement was considered erroneous, it yet remained that the magistrate could otherwise have been satisfied as to para. (f). In that circumstance I would not as a matter of discretion grant relief on account of error of law on the face of the record.
15 The second ground, broadly speaking, that the plaintiff has relied upon was a want of natural justice. I put aside in considering this matter the point taken by Mr McArdle that the rule of procedural fairness relied upon by Ms Randazzo may not be applicable in the circumstance of the unique provision in sub-s.(5). I put it aside without finding the need to consider it. Assuming that the magistrate was bound to afford procedural fairness in the relevant sense that is the subject of the submission, that is to say, a reasonable opportunity for counsel to have addressed a point made by the opponent, it seems to me that the answer lies in the fact that there was no attempt made at the time to address a submission in relation to it. It is true that, following the statement, the magistrate said "Thank you" and that he wanted about ten minutes to consider it, and the court was adjourned, and the transcript picks the matter up later when he returned and gave his reasons; but neither immediately following Mr Cecil's statement and before the magistrate left the bench, or when he returned to the bench, did counsel seek the opportunity to respond to the statement, and I think that it does not lie appropriately now to contend that the magistrate, who had been careful first to obtain a submission from the prosecutor and then to hear from counsel for Marks, denied natural justice. I reject the submission.
16 The third ground which has been argued is that the magistrate failed in making the order to state the evidence on which he was satisfied of the matters referred to in sub-s. (3). This is the requirement of sub-s. (7)(b). It seems to me that, for reasons I have already given, this requirement is seen to be satisfied in the reference by the magistrate to the evidence and in the way that he dealt with the contention in relation to para. (f), and in the incorporation of his reasons in the order of the court. Accordingly I reject that part of the submission.
17 I think I have dealt with the various matters argued, and the result is that the originating motion will be dismissed.
2. That the plaintiff pay the first defendant's costs including reserved costs.
Marks
Buick [2003] VSC 488
The originating motion was dismissed, and the plaintiff was ordered to pay the first defendant’s costs, including reserved costs.