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[2003] VSC 45
respondent. The originating motion was dismissed; the Court declined to make an order in the nature of certiorari quashing the Magistrate’s order.
Police obtained an order requiring O'Sullivan to provide a DNA mouth swab after he refused consent. He challenged the order, saying there was not enough evidence and that police withheld investigative results that might have helped him. The Supreme Court said it was reviewing for legal error, not deciding the original application again. It found there was evidence capable of supporting the Magistrate's findings. It also said that information tending against those findings should be disclosed in this type of restricted process, but the information said to have been withheld was neutral on the Court's assessment. Although the Magistrate should have considered the non-disclosure and bad-faith issues, the Court declined to quash the order and dismissed the proceeding.
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In O'Sullivan v Freeman [2003] VSC 45, Ashley J considered an application for judicial review of a Magistrates' Court order made under s 464T of the Crimes Act 1958 (Vic). The order required Dale O'Sullivan to undergo a compulsory procedure, specifically a mouth swab to obtain a DNA sample. Police had sought the order after O'Sullivan declined to consent to the procedure ([2]).
The police application arose from an investigation into documents sent to Sergeant Jenner. The supporting affidavit said Jenner had received a typed, unsigned letter on 27 August 2002 and a document in the form of a death certificate on 3 September 2002. The Court considered it unnecessary to set out their terms, but said they were documents that might constitute an offence under s 20 ([15]). DNA from two sources had been found on the stamp on the second document. The first source was female; the second could have been male or female ([18]).
The affidavit also described a history of disputation between O'Sullivan and Jenner. Among the matters recorded was a telephone statement by O'Sullivan that Jenner's life would be changed forever. The history included an intervention order obtained by Jenner, O'Sullivan's attempts to have that order varied or cancelled, and O'Sullivan's unsuccessful attempts to obtain an intervention order against Jenner ([21]).
The Magistrate found the relevant statutory matters established on the balance of probabilities and directed that a sample be taken ([24]). O'Sullivan sought judicial review, alleging there was no evidence capable of satisfying s 464T(3), that relevant information had been selectively withheld, and that the application had been made in bad faith ([27], [30], [33], [36]).
Ashley J dismissed the proceeding. The Court did not decide the police investigation afresh. It considered whether a recognised legal error justified setting aside the Magistrate's order and, ultimately, declined to grant certiorari ([48], [63], [66]).
The first important step was defining the nature of judicial review. Ashley J said the proceeding was not one in which he could simply “re-decide the application agitated before the Magistrate” ([48]). O'Sullivan had to show relevant legal error. The judgment identified jurisdictional error, failure to observe procedural fairness, fraud, and error of law on the face of the record as circumstances that could justify quashing an order ([48]).
On the no-evidence argument, the Court accepted that a complete absence of evidence on which the Magistrate could make the required findings might provide a basis for relief ([51]). But it found that this was not such a case. The material included evidence that an offence of a relevant kind had been committed, evidence of the strained history between O'Sullivan and Jenner, and DNA on the stamp ([51]). The Court recognised that it was uncertain whether the DNA that could have been from a male was O'Sullivan's. It nevertheless considered it open to conclude that DNA from the putative offender had been deposited on the stamp ([51]). That assessment addressed whether some evidence supported the statutory findings, not whether the DNA proved O'Sullivan had committed the offence.
The disclosure argument raised a broader procedural-fairness concern. Under s 464T(5), the relevant suspect was not a party to the application, could not call or cross-examine witnesses, and could address the Court only on a limited set of matters ([8]). Ashley J considered it important, given those restrictions, that the Magistrate be fully informed about the state of the investigation. Information plainly tending against the statutory beliefs or findings ought to be disclosed ([57]).
The judgment did not, however, treat every omission as legally significant. O'Sullivan said that police had examined typewriters and computers to identify the machines used to produce the documents, and that those investigations had not turned up anything against him ([54]). Ashley J assumed that the investigations and the outcome described had occurred, but considered the outcome neutral. On that view, withholding it could not sensibly stand as evidence of bad faith ([60]).
The Court also identified an error in the Magistrate's approach. The incomplete transcript indicated that O'Sullivan had tried to raise non-disclosure and bad faith, but the Magistrate appeared to regard those matters as extraneous. Ashley J said that was not correct ([63]). That did not automatically mean the order should be quashed. The Court had already concluded that the material substance of O'Sullivan's case did not favour him, and declined certiorari in its discretion ([63]).
This judgment is a decision on the law as the Court understood and applied it in 2003. The supplied judgment does not describe a change in legislation or announce that it is overruling an existing rule. It applies s 464T of the Crimes Act 1958 (Vic) to a specific application for a compulsory DNA procedure.
The statutory context mattered. Section 464T(2) required a written application supported by evidence on oath or affidavit. The evidence had to address the matters made relevant by s 464T(3) that were pertinent in the particular case, and the relevant matters had to be established on the balance of probabilities ([5]). The suspect's restricted role was set out in s 464T(5) ([8]). The judgment's concern was how that restricted process should operate when the evidence supporting the application may not tell the whole investigative story.
The decision states two complementary propositions. First, judicial review is not a second hearing on the merits. The applicant must establish legal error of a recognised kind ([48]). Secondly, the fact that a suspect has limited participation makes disclosure of information tending against the required statutory conclusions especially important ([57]). These propositions are not inconsistent: the Court can review whether the process was legally fair without simply reweighing the evidence as if it were the Magistrate.
The Court's comments on disclosure are qualified. It said that a court's hands would not be tied if an order emerged to have been made on a premise likely to be false, and that procedural fairness might be engaged. It also said the Court's readiness to act would be greater where there was a substantial allegation that non-disclosure was deliberate or lacked good faith ([57]). Those observations identify possible grounds for intervention, rather than a finding that the police or Magistrate acted unlawfully in O'Sullivan's case.
The judgment therefore supplies no comprehensive account of the later state of s 464T or of subsequent statutory amendments. It should be read as an explanation of the Court's approach in this particular review proceeding, not as a complete statement of every later development in Victorian DNA-sampling law.
At [48], Ashley J says, “This is not a proceeding by which I am authorised simply to re-decide the application agitated before the Magistrate.” In plain English, the Supreme Court was not deciding whether it would itself have ordered the swab. It was checking whether a legal flaw justified judicial intervention.
At [51], the Court explains that a total absence of evidence could support quashing the order, but concludes there was evidence in this record. The Court points to the alleged offence, the history between O'Sullivan and Jenner, and DNA material on the stamp. The key distinction is between evidence being uncertain or contestable and there being no evidence at all. The judgment says the DNA might not have been O'Sullivan's, but the statutory question identified by the Court was whether material reasonably believed to be from the offender's body had been found on the stamp ([51]).
At [57], the Court says the Magistrate should be “fully appraised of the state of an investigation”. In plain English, an application made without the suspect's ordinary ability to participate calls for particular care that the court receives information that could undermine the statutory findings. The Court specifically refers to information that would tend to show there were not reasonable grounds for the relevant belief or that the statutory grounds were not established.
At [60], the Court characterises the additional investigation results as “neutral”. That is the factual evaluation that defeats O'Sullivan's bad-faith argument on this record. The point is not that information can always be withheld if police consider it unhelpful. Rather, the Court's stated principle at [57] concerns information plainly tending against the statutory findings, while its application at [60] treats the particular information described as not having that character.
At [63], the Court says the Magistrate's treatment of the issues as extraneous “was not correct”. Yet the Court did not grant relief. The passage demonstrates that identifying an error does not, by itself, dictate the remedy; the Court also considered the substance of the case and its discretion to grant certiorari.
The decision is most relevant to applications under the version of s 464T considered in the judgment, where police seek a compulsory procedure after a suspect refuses consent. It is particularly relevant when the suspect has restricted rights to participate in the application, including the statutory limits on being a party, calling or cross-examining witnesses, and addressing the court ([8]).
A potential issue arises where the investigating agency does not disclose information that may undermine a required statutory belief or finding. The judgment indicates that the content and significance of the omitted information matter. Information plainly tending against the statutory conclusion should be disclosed ([57]); neutral investigative results did not establish bad faith in O'Sullivan's case ([60]).
The decision also matters where a judicial-review applicant argues that the evidence before the Magistrate was insufficient. The relevant threshold described is not whether the Supreme Court would reach the same conclusion, but whether there was no evidence capable of supporting the required findings ([48], [51]). Evidence that is uncertain, including DNA that might have come from someone else, does not necessarily amount to no evidence.
Finally, the decision is relevant where the original decision-maker treated procedural-fairness or non-disclosure concerns as outside the scope of the application. Ashley J considered that approach incorrect, although the error did not result in relief on the facts before him ([63]).
The supplied judgment contains no account of later judicial treatment of O'Sullivan v Freeman. It therefore does not establish whether later courts have followed, distinguished, explained, or limited its disclosure observations. No claim about later treatment can be grounded in the material provided.
Within this judgment, Ashley J referred to R v Criminal Injuries Compensation Board ex parte A as a possible analogy and noted that cases about warrants discussed in Aronson and Dyer might also be relevant ([57]). The judgment does not set out those authorities' reasoning in detail or adopt a broader rule from them. They are signposts for possible comparison, not a basis in this text for claiming that a later court has applied O'Sullivan.
For research purposes, the most useful propositions to trace in subsequent authorities would be the treatment of disclosure in one-sided or restricted statutory applications, the distinction between neutral information and information tending against statutory findings, and the relationship between an identified procedural error and discretionary relief. Those are research questions suggested by the judgment, not statements about what subsequent courts have in fact decided.
Several matters remain unresolved in the judgment. First, Ashley J did not specify what degree of potential relevance makes information “plainly tending” against a statutory belief or finding for the purposes of disclosure ([57]). The decision does not provide a general test for borderline information.
Second, the Court did not decide what remedy would follow if material information were withheld. It said intervention might be available if an order rested on a premise likely to have been false, and that deliberate or bad-faith non-disclosure could increase the Court's readiness to act ([57]). But it did not determine a case where those circumstances were established.
Third, the Court did not finally determine the factual status of the additional investigations. It assumed, for its analysis, that the investigations and the outcome described by O'Sullivan had occurred ([60]). Nor does the judgment detail the full content of those results. Its conclusion that they were neutral is therefore tied to the information as described in the proceeding.
Fourth, the Court noted that the Magistrate should have dealt with the non-disclosure and bad-faith issues, but did not explain in detail how the Magistrate should have evaluated them or what procedural steps would have been required ([63]). The judgment also notes procedural defects in O'Sullivan's review proceeding, including that the Magistrate was not made a party, but says those defects were put to one side ([45]).
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[2003] VSC 45
Judicial review - application to quash order that a person undergo a compulsory procedure - alleged failure of applicant in Magistrates' Court to disclose exculpatory circumstances - allegation that application to Magistrates' Court made in bad faith. Crimes Act 1958, s. 464T.
"(a) is not a party to the application; and (b) may not call or cross-examine any witnesses; and (c) may not address the Court, other than in respect of any matter referred to in sub-s.3 (a) to (h)."
[3] In that connection counsel for the defendant informed me that contact had been made with the Chief Magistrate, who had informed the presiding Magistrate of the proceeding, and who had indicated that the presiding Magistrate would abide the outcome of the proceeding in accordance with the so-called Hardiman principle.
O'Sullivan
Freeman [2003] VSC 45
The originating motion was dismissed; the Court declined to make an order in the nature of certiorari quashing the Magistrate’s order.