Heinze v Director of Public Prosecutions (SA) - [2024] SASC 45

SUPREME COURT OF SOUTH AUSTRALIA
(Appeal to a Single Judge)
HEINZE v DPP (SA)
[2024] SASC 45
Judgment of the Honourable Chief Justice Kourakis (ex tempore)
28 February 2024
CRIMINAL LAW — PROCEDURE — CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS — DESTRUCTION OF CONTROLLED PROPERTY — GENERALLY
This was an appeal against an order permitting the destruction of controlled property owned by the appellant.
The appellant, Mr Heinze, was convicted of several violent and sexual offences committed against two women at Salt Creek in February 2016. In the testimony of one of those women, it was alleged that, during the course of his offending, the appellant had attempted to run the deponent over in his four-wheel drive Nissan Patrol, onto the roof of which she climbed in an attempt to escape the appellant. It was further alleged by the same deponent that, having climbed onto the roof of the vehicle, she had clung onto one of the vehicle’s antennas to avoid falling off the roof as the appellant drove erratically across the sand dunes of the beach next to which they had camped. The appellant’s appeal against his convictions was unanimously dismissed in November 2017 by the Full Court of the Supreme Court.
Following his conviction and committal to gaol, the respondent instituted proceedings in the Magistrates Court, seeking the destruction of the appellant’s Nissan Patrol on the basis that such destruction was in the public interest. Over the appellant’s objection, an order to that end was made by the Magistrate under s 202(2)(a) of the Criminal Assets Confiscation Act 2005 (SA). On appeal, the appellant contended that, he having instructed a solicitor to advise on the prospects of an application for special leave to appeal against his convictions to the High Court, there were forensic reasons upon which to halt destruction of the Nissan Patrol. In particular, the appellant contended that the vehicle ought not to be destroyed prior to the undertaking of certain forensic examinations said to be in aid of his application for special leave to appeal.
Held, dismissing the appeal:
1. In circumstances where the appellant’s vehicle was substantially stock-standard, such that any person familiar therewith would be able to give evidence regarding its characteristics, and the respondent had conducted DNA swabs of, and retained, the vehicle’s antennas, there was no forensic or other purpose to be served in preserving the appellant’s vehicle.
Criminal Assets Confiscation Act 2005 (SA) ss 200(1), 202(1), 202(3), referred to.

HEINZE v DPP (SA)
[2024] SASC 45
Single Judge Appeal - Civil

KOURAKIS CJ (ex tempore): This is an appeal from an order made in the Magistrates Court on 16 August 2023 that the Administrator, under the Criminal Assets Confiscation Act 2005 (SA), be permitted to destroy a four-wheel drive Nissan Patrol, which was the instrument of a course of violent offending against two young women at Salt Creek on 9 February 2016. The appellant, Mr Heinze, was convicted of several violent and sexual offences following a jury trial, and was sentenced to imprisonment for 22 years and four months, with a non-parole period of 17 years on 17 May 2017.
Section 200(1) of the Act provides that the Administrator may destroy controlled property if it is in the public interest to do so or is required for the health or safety of the public. Section 202(1) sets out a procedure whereby a person who objects to such destruction may appeal against that order. Mr Heinze is such a person who has lodged a relevant objection, and the terms and circumstances of the ground of his objection are set out in correspondence exhibited to an affidavit before me.
Section 202(1) provides that, on the making of an objection, the Administrator may apply to the court that made the restraining order covering the controlled property for an order that the Administrator be empowered to destroy or dispose of the property. Sub-section (2) confers a discretion on the court to make an order to destroy the controlled property if it is in the public interest to do so or is required for the health or safety of the public. The Director’s application in the Magistrates Court rested on the first of those considerations: namely, the public interest.
Sub-section (3) of s 202 provides for a number of matters which inform the exercise of that discretion. The matters include the use to which the property would be put, if it were sold; whether the cost of restoring the property to a saleable condition would exceed its value; whether the cost of sale would exceed its realisable value; whether the sale of the property would otherwise be legal; and any other matter to which the court thinks it is just to have regard. No specific evidence on the matters raised in pars (a)-(d) was put before the Magistrate by the Administrator.
When this matter was first called on for hearing on 14 February, Mr Heinze asked for an adjournment. He informed me that he had instructed a solicitor, Mr Lister, to appear on this appeal against the order that the vehicle be destroyed, and that Mr Lister had been engaged to prepare material for submission to a barrister to receive advice on the prospects of success of an application for special leave to appeal to the High Court. Mr Lister was not present in court. He appeared after my Associate telephoned his office. Mr Lister advised me that he had not been engaged to appear on this appeal, but had been engaged to prepare a brief for submission to a barrister for a possible application for special leave to the High Court.
Today, Mr Heinze tells me that he has had some, albeit very recent, discussions with Mr Lister and that Mr Lister told him to ask for an adjournment. However, no cogent reason for adjourning the matter has been put before me.[1]
[1] In my ex tempore remarks, I mistakenly stated that Mr Lister was not in Court, having failed to notice that he was sitting in the public gallery.
When the appeal first came for hearing on 14 February, Mr Heinze stated that his only concern was to have the antennas of the vehicle forensically tested. Mr Heinze explained that Ms R, one of the victims of the offending, had testified that she had clung to the antenna, and that, if it were destroyed, he would lose the opportunity to have it tested to prove her claim to be false. Mr Heinze hoped that forensic swabbing of the antenna would reveal that there was no DNA from that victim on the antenna. I will return to that issue later.
It is important to commence by setting out the evidence given in Mr Heinze’s trial. I draw this summary of the evidence from the Full Court Judgment on an appeal which Mr Heinze brought against his conviction. The appeal was dismissed. It is against the dismissal of that appeal which Mr Heinze is in the process of obtaining legal advice, in the hope that he might bring an application for special leave to appeal. Some preliminary observations about the prospects of any such application should be made.
Mr Heinze was sentenced on 17 May 2017. Almost seven years have now lapsed. That, in itself, tells strongly against the prospects of success of the proposed application. However, insofar as there may be such prospects, and to evaluate the importance of retaining the car or conducting more extensive swabbing of the antennas alone, it is necessary to understand the evidence on which Mr Heinze was convicted.
The evidence showed this. On the morning of 9 February 2016, Mr Heinze drove two young women, Ms F and Ms R, in his Nissan Patrol onto a Coorong beach, after turning off from the Salt Creek Roadhouse. After camp was set up at about 4:00 pm, Ms R went to sleep in the car. Ms F and the appellant eventually walked onto nearby sand dunes on the appellant’s suggestion that they look for kangaroos. I might interpolate here that this is based on their testimony; Mr Heinze did not give evidence. The fact that he did not give an account consistent with his innocence at trial also bears heavily on his prospects for success on his application for special leave to appeal, and, in particular, on the significance of swabbing the car and the assistance it may or may not give him in that respect.
To take up the testimony of Ms F, Ms F deposed that, whilst on the sand dunes, Mr Heinze attacked her from behind and pulled her to the ground. She said that he produced a knife and a length of rope which he used to tie Ms F’s hands behind her back. He used the knife to cut away Ms F’s bikini. That conduct constituted the offence of aggravated kidnapping. Mr Heinze, according to Ms F, then indecently kissed her. That conduct was the subject of the charge of indecent assault. The appellant then attempted to place Ms F’s bikini bottom into her mouth but Ms F clenched her teeth to stop him doing so. Mr Heinze, according to Ms F, was so enraged that he spat on, and punched her in, her face. The punching was the subject of the charge of causing harm with intent to cause harm.
Ms F testified that she then tried to placate Mr Heinze. He allowed her to stand but then hobbled her ankles together with the rope. At first, he walked Ms F through the dunes towards the camp site, but then changed direction and threw her onto the ground where he punched her.
The prosecutor adduced very important circumstantial evidence supportive of Ms F’s account. Secondary evidence was given that rape pornography was found on the appellant’s electronic devices by Detective Handley, who viewed it. The evidence was given in that way because agreement could not be reached on the extent to which the images themselves should be edited before being put into evidence. The rape pornography viewed by Detective Handley bore a striking similarity to the account of Ms F.
Mr Heinze did not give evidence. In cross-examination of Ms R and Ms F, his counsel put that the appellant had not done anything wrong on that day. The cross-examination implied that Ms F and Ms R had fabricated their accounts. In particular, it was put to Ms F that she had not been assaulted in any way, and it was put to Ms R that Mr Heinze did not attack her or Ms F.
It was put to Ms R that she had asked Mr Heinze to drive her around the sand dunes to look for Ms F, who had walked off on her own after losing her temper over something. It was put to Ms R that she had fallen off the roof of the car onto which she had climbed to get a better view.
Ms R deposed that she was woken by the sound of Ms F screaming. She saw Ms F lying naked on her back with the appellant standing over her. Ms R shouted at Mr Heinze causing him to chase her back to the car. At the car, Mr Heinze caught up with Ms R and struck her about the head four times with a hammer, causing skull-deep lacerations. That conduct was the subject of a charge of attempted murder, on which the jury returned the alternative verdict of aggravated attempt to cause serious harm with intent to cause serious harm.
After a short struggle, Ms R escaped onto the nearby sand dunes to look for Ms F. She found Ms F and removed the ligature from Ms F’s wrists. Sensibly, and courageously, the two women resolved to run in different directions. Ms F ran onto the sand dunes and hid in some bushes; Ms R ran away, but the appellant caught up with her in his vehicle and struck her from behind with the bull bar. Ms R testified that she was knocked to the ground but got up and ran again only to be chased down by the vehicle and struck again. This pattern repeated itself several times and, on one of the occasions, Ms R testified that the car ran over the top of her. That conduct was the subject of a charge of endangering life.
Ms R’s account continued. She said that she was exhausted and unable to run further, so she jumped onto the bonnet of the car and held onto the antenna before climbing onto the roof. Mr Heinze, according to her, then stopped and got out of the car. There was an angry exchange in which Mr Heinze demanded that Ms R come down and Ms R pleaded that he return her to the road. She said that Mr Heinze attempted to strike her legs with the hammer to get her off the roof. That was the subject of a charge of aggravated assault.
Her account continued that Mr Heinze then returned to the car and began to drive through the sand dunes with Ms R hanging onto the car’s roof rack. She said that he drove wildly and erratically. The car became bogged. When the appellant appeared to calm down, Ms R, anxious about her injuries, agreed to get back in the car.
While Ms R was on the roof of the appellant’s car, Ms F remained hidden in some bushes until she saw a white utility driving along the beach. There were four men in the car who were referred to in the evidence at trial as the ‘Mohammeds’. Ms F ran towards them screaming hysterically. She jumped into the back seat for refuge and started screaming at the men ‘Go, go, go, get out of here. He’s going to kill us all’. According to the men, Ms F said ‘He tried to rape me. He tried to. He tied me up and he’s got my friend and he’s still out here with her’.
Two other vehicles pulled up behind the Mohammeds’ utility. They were referred to in the evidence as the ‘young fishermen from Melbourne’. It was agreed that the young Melbourne fishermen would drive back to the gate entry point to the beach while the Mohammeds remained with Ms F. They drove Ms F to the beach campsite looking for Ms R. She was not there, of course, because she was on the roof of the appellant’s car.
At the campsite, Ms F identified her bikini bottoms and told the Mohammeds that her attacker ‘had ripped them off me, tried to rape me and bash me’. When the Melbourne fishermen got back to the gate entry point they came across off duty police officers. While talking to them, they saw Mr Heinze’s car snaking its way past them at a very fast speed. One of the men saw Ms R in the passenger side of the vehicle. Ms R said that she screamed for help as the car drove past.
The Melbourne fishermen got into their cars and drove slowly along the beach, trying to observe Mr Heinze’s vehicle. In that process, Mr Heinze stopped his vehicle and Ms R got out. She walked to the fishermen and, according to her, was rescued by them. The fishermen testified that they saw that she was covered from head to toe in blood and had a tennis ball sized lump on her head that was bleeding. Her face and head were swollen. They provided some immediate assistance to Ms R before driving her back to the safety of the Salt Creek Roadhouse.
Mr Heinze appealed only on the ground that the Judge erred in receiving the evidence of the rape pornography. He did not appeal on the ground that the verdict was unreasonable. There was no application to adduce further evidence. Mr Heinze was represented by legal counsel.
In the face of the unanswered testimony of Ms F and Ms R, corroborated as it is by the observations of the witnesses referred to as the Mohammeds and the Melbourne fishermen, and supported as it is by the evidence of the rape pornography, it is difficult to see that Mr Heinze has any real prospect of success on an application for special leave.
In the course of the hearing on 14 February, I explained to Mr Heinze that he was under no obligation to give me an account of the events at Salt Creek on that day which would explain any or all of the evidence led by the prosecution to which I have referred, or which might explain why the forensic examination of the vehicle was necessary.
I explained to Mr Heinze that any explanation he did give might assist in understanding whether or not there was a forensic purpose in subjecting the vehicle to examination. Mr Heinze declined to give any such account. The failure to give an account also bears strongly against any grant of special leave and against maintaining the vehicle in a state for the extensive forensic examination that Mr Heinze now wants the police to undertake.
Initially on this appeal, Mr Heinze advanced two forensic purposes for retaining the vehicle. The first was that he claimed that it was improbable that Ms R was run over by the Nissan because of the very small clearance between the LPG tank attached to the undercarriage of the Nissan. However, Mr Heinze then said that photographs of the Nissan had been taken, including of an attempt by someone to lay on the ground within that space. He said that, other than the LPG tank, the Nissan was a stock-standard vehicle. When pressed, Mr Heinze accepted that he did not need the Nissan to be retained in respect of any possible ground on his application for special leave. Indeed, he claimed that any number of persons familiar with four-wheel drives, and the Nissan in particular, would be able to give such evidence.
Mr Heinze eschewed any desire to perform a re-enactment on the beach. It would be of very limited, if any, utility in any event, given the improbability that the beach terrain contains any similarity in its present contours to the contours it had on the day of the offences.
The only other forensic purpose on which he relied for not destroying the Nissan was to show that there was neither blood nor any other bodily material of Ms R’s on or about the antenna to which she claimed she had clung as Mr Heinze drove erratically across the dunes. Mr Heinze accepted that the prosecution did not adduce evidence that there was any such material on the antenna. Any application for special leave to appeal to the High Court would, therefore, be argued on the premise that there was no such material. However, Mr Heinze was concerned that it might nonetheless impact his application for leave to appeal if the vehicle were destroyed. I accept that, in one sense, any application for special leave to appeal might be stronger if there were positive evidence that there was no such material on the antenna, even though there are, of course, many reasons, probably exacerbated by the delay, why no such material might now be found.
At the conclusion of the hearing on 14 February, I asked counsel for the Director, Mr Slocombe, to obtain instructions on whether the antenna might be swabbed. That being the only forensic analysis upon which, at that time, Mr Heinze relied in his objection to the destruction of the vehicle.
Today, Mr Slocombe has informed me that police forensic investigators took swabs for biological material for the purposes of DNA testing from two of three antennas on the vehicle. Moreover they have removed two of the antennas, being the one on the bull-bar and the one on the bonnet, which are the only antennas on which, on Ms R’s account, she might have clung.
I understand that the antennas and the DNA swabs will be maintained until such time as they might be necessary, should Mr Heinze ever make an application for special leave to appeal to the High Court. Accordingly, as a result of that forensic examination of the antennas and the retention of the antennas there is no cogent reason from what Mr Heinze advanced on the 14th to allow the appeal. There is no cogent reason to preserve the Nissan any further.
After the hearing on 14 February, Mr Heinze wrote to my Chambers and indicated a list of other examinations, particularly of the interior of the car, that he wished to have undertaken. On the accounts of the evidence at trial, and the absence of any contrary account from Mr Heinze, there is no forensic purpose in undertaking any further testing other than that which Mr Slocombe informs me has been undertaken. For those reasons I dismiss Mr Heinze’s appeal.