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[2005] VSC 76
plaintiff. The Crown’s applications to retain the forensic samples from both accused were granted.
14 cited instruments linked from this judgment.
The Crown sought permission to keep forensic samples from Heriban and Brunner after they were found guilty of relevant offences. Whelan J held that a conviction alone was not enough, but that the seriousness and circumstances of an offence could justify retention without additional evidence in every case. The court also recognised the significant privacy impact. Applying those considerations to the conduct described and each man's history, it granted both applications.
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1,988 words · generated 28/09/2026
In R v Heriban and Brunner [2005] VSC 76, Whelan J dealt with Crown applications to retain forensic samples obtained from two accused men with their consent. Heriban consented on 26 June 2003 and Brunner on 25 June 2003 ([1]). The applications were brought under s 464ZFB(1) of the (Vic), which the judgment describes as permitting an application for a retention order after a forensic procedure and a finding of guilt for a relevant offence ([5]).
The applications had different procedural settings. Brunner's counsel told the court that his client's application was not opposed ([2]). Heriban opposed the application. His counsel relied on R v Abebe [1998] VSC 214 and R v Lagona [1998] VSC 220, submitting that something more than the fact of conviction was needed and that there was no such additional matter here ([3]). Counsel also referred to Pavic v Magistrates' Court of Victoria [2003] VSC 99 ([3]).
The Crown submitted that retention was justified by the seriousness and circumstances of the offences, and by the involvement of alcohol in both the offence and Heriban's prior convictions ([4]). Whelan J concluded that the circumstances and seriousness of both offences justified retention. The judgment records that Heriban, while intoxicated, assaulted a burglar twice, causing the burglar's death. It records that Brunner drove the person, whom he believed to be injured, to a bush track and abandoned him there rather than taking him somewhere assistance might be obtained ([9]).
The court also considered the accused men's histories. It referred to Heriban's prior alcohol-related offences and Brunner's long prior criminal history, including previous offences of violence. It additionally noted Brunner's lack of opposition to the application ([9]). Whelan J considered the order justified in each case and granted the applications.
The court's statutory starting point was s 464ZFB(1) and (2). As set out in the ruling, subsection (1) provides for an application to retain a sample where a forensic procedure has been conducted and the person has been found guilty of a relevant offence. Subsection (2) requires the court to consider the seriousness of the circumstances of the offence and to be satisfied that an order is justified in all the circumstances ([5]).
The key interpretive point was how to understand Abebe and Lagona. Heriban's submission treated those cases as requiring something more than conviction before an order could be made ([3]). Whelan J accepted the narrower proposition that conviction by itself is not enough, but rejected the view that additional evidence beyond the offence circumstances must always be presented. He said those cases did not establish that “evidence of matters in addition to the circumstances of the offence itself must be led” ([7]). In his analysis, the statutory issue remained whether an order was justified in the particular case, with the seriousness of the offence circumstances taken into account.
This distinction matters to the structure of the reasoning. It avoids treating conviction as an automatic trigger for retention, while also avoiding a categorical requirement that the Crown prove some separate aggravating feature outside the offence circumstances. The assessment remains case-specific. The offence and its circumstances can themselves support an order, but the court must still decide whether retention is justified in all the circumstances.
Privacy formed a second part of the court's reasoning. Whelan J said that the observations in Pavic remained relevant despite the legislative response to that decision. He adopted the point that the statutory provisions involve “a significant invasion of the subject's privacy” and must be approached accordingly ([8]). The ruling does not provide a separate test for measuring that privacy impact. It does make clear that the impact is not to be ignored when the court evaluates an application.
Applying those principles, Whelan J relied on the gravity and circumstances of the offending. The ruling describes Heriban's repeated assault on the burglar while intoxicated and the resulting death, and Brunner's decision to leave the person he believed injured on a bush track ([9]). It then identifies individual matters relevant to each accused: Heriban's prior alcohol-related offences and Brunner's long prior history, including violence. The court concluded that the combined matters justified retention in both cases ([9]).
The judgment's account of the law before its ruling is limited to the statutory provision and the authorities argued by counsel. It says Abebe and Lagona were applications under s 464ZF(2), whereas the applications before Whelan J were under s 464ZFB(1) ([6]). No submission was made that different considerations applied under the two provisions, so Whelan J proceeded on that basis ([6]). The ruling therefore does not set out a detailed comparison of the provisions or independently analyse possible differences between them.
The judgment clarifies the approach taken in the case: conviction alone is insufficient, but the seriousness and circumstances of the offence may justify retention without separate evidence about other matters ([7]). It also preserves privacy as a relevant consideration, referring to Pavic despite a legislative response ([8]). The judgment refers to the Crimes (Amendment) Act 2004 and parliamentary debates as the legislative response, but does not explain the provisions of that amending Act or set out the debate in detail. A broader account of the amendment's effect cannot be drawn from this ruling alone.
As to the position after the ruling, the material supplied establishes only that Whelan J granted the two applications on the facts before him. It does not establish how later courts interpreted, followed or limited the decision. Nor does this short ruling state a comprehensive framework for every retention application. Its express point is narrower: the justification assessment is individual, conviction alone does not suffice, and offence circumstances can in some cases provide the necessary justification.
At [5], the court sets out the statutory structure: an application can be made after a relevant finding of guilt, and the court must take offence seriousness into account and be satisfied that retention is justified in all the circumstances. In plain English, the existence of a conviction opens the door to an application but does not decide it. The court must still assess whether retention is justified.
At [7], Whelan J explains that Abebe and Lagona do not require evidence beyond the circumstances of the offence in every case. His statement that “a mere conviction in itself is not sufficient” marks the lower boundary: a conviction alone cannot do the work. His further statement that an order may be justified by the offence's seriousness and circumstances explains that the court need not insist on a separate category of additional evidence. In practical terms, the court assesses the case's circumstances rather than applying an automatic rule in either direction.
At [8], the court adopts the privacy concern identified in Pavic. In plain English, retaining a person's forensic sample is not treated as a routine administrative step with no personal impact. The court says the privacy invasion is significant and that the statutory provisions must be approached with that in mind. The ruling does not quantify the privacy interest or describe specific limits on retention.
At [9], the court applies its approach to the facts it regarded as important. It refers to the conduct of each accused, the consequences, and each man's prior history. For Brunner, it also notes that the application was unopposed. The court's conclusion is that these combined circumstances justified orders for both men. The ruling does not say that any one of these factors, taken alone, would necessarily justify retention in another matter.
The ruling is relevant where a court is asked to permit retention of a forensic sample after a finding of guilt under the statutory provisions discussed. Its central interpretive point is engaged where a party argues either that conviction itself is enough or, at the other extreme, that the Crown must always establish matters additional to the circumstances of the offence. Whelan J rejected both absolute positions: conviction alone is insufficient, but offence circumstances may themselves justify retention ([7]).
The factual example before the court involved serious offending with grave consequences. The judgment records an assault resulting in death and the abandonment of a person believed to be injured ([9]). It also records prior histories relevant to the court's assessment: alcohol-related offences for Heriban and a long criminal history, including violence, for Brunner ([9]). These are the specific circumstances on which the court relied in granting the applications. The ruling does not establish that the same result follows for less serious offences or where the surrounding circumstances differ.
The case is also relevant to arguments about privacy in forensic-sample retention applications. It confirms that the significant privacy invasion identified in Pavic remained relevant after the legislative response mentioned by the court ([8]). The judgment does not, however, identify a particular evidentiary threshold for weighing privacy against the other circumstances. It should therefore be read as recognising the consideration, not as supplying a complete balancing formula.
The supplied judgment contains no later decisions applying, distinguishing or limiting R v Heriban and Brunner. It is a ruling delivered on 23 March 2005, and the text identifies only authorities that Whelan J considered: Abebe, Lagona and Pavic. It also refers to the 2004 amending Act and parliamentary debates, but does not discuss any later judicial treatment.
Accordingly, no conclusion about subsequent treatment can be grounded in this material. The ruling's stated reasoning can be identified, but whether later courts adopted or modified it would require later case sources that are not included here. The judgment itself says that Abebe and Lagona concerned s 464ZF(2), and proceeds on the basis that no different considerations were argued for s 464ZFB(1) ([6]). That procedural point is important when considering the reach of the ruling: the court's approach was taken in the context of the parties' submissions, rather than after a contested analysis of every possible difference between the sections.
The ruling leaves several matters unresolved in its own text. First, it does not explain how the court should weigh the privacy invasion against the circumstances supporting retention beyond the statement that privacy is significant and the provisions must be approached accordingly ([8]). It recognises the issue but does not set out a balancing test.
Second, it does not define what degree of offence seriousness or what combination of circumstances will be sufficient in less severe cases. Its application involved conduct resulting in death and abandonment of a person believed to be injured ([9]). The decision establishes that offence circumstances can suffice in an appropriate case, but does not specify a general threshold.
Third, the ruling does not decide whether the considerations under s 464ZF(2) and s 464ZFB(1) are necessarily identical. It records that no submission was made that different considerations applied and says the court would proceed on that basis ([6]). That is an express limit on what can be taken from the decision about the relationship between those provisions.
Fourth, the judgment does not explain the precise effect of the 2004 legislative response to Pavic. It states that Pavic's privacy observations remained relevant notwithstanding that response and cites the amending Act and parliamentary debates ([8]). The text does not set out the amendment's terms or provide a detailed legislative history.
Finally, the ruling does not indicate how much weight was assigned to Brunner's non-opposition, apart from listing it as one of the circumstances supporting the conclusion ([9]). It does not suggest that non-opposition alone would establish justification. The decision should therefore be understood as a fact-specific application of the statutory test, with its express general guidance confined to the points stated at [5]–[8].
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CRIMINAL LAW - Application for order permitting retention of forensic samples -
s 464ZFB(1) Crimes Act 1958.
2 Counsel for Mr Brunner told me the application in relation to his client was not opposed.
3 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]
4 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.
5 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).
6 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.
7 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.
8 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.
9 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.
R
Heriban & Brunner [2005] VSC 76
The Crown’s applications to retain the forensic samples from both accused were granted.