R v Van Den Heuvel - [2005] SADC 83

DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v VAN DEN HEUVEL
Criminal Trial by Judge Alone
Reasons for the Verdict of His Honour Judge Millsteed
14 July 2005
CRIMINAL LAW
Trial by judge alone - accused charged with aggravated serious criminal trespass - common assault - attempted wounding with intent to cause grievous bodily harm - claim of right to enter premises - denial of acts of violence - guilty of aggravated serious criminal trespass and attempted wounding with intent - not guilty of common assult.
Criminal Law Consolidation Act 1935, referred to.
Pfennig v The Queen (1995) 182 CLR 461; Harriman v The Queen (1988-89) 167 CLR 590; Wilson v the Queen (1970) 123 CLR 334; The Queen v Hissey (1973) 6 SASR 280; The Queen v Bennett & Ors (2004) 88 SASR 6; Barker v The Queen (1983) 153 CLR 338; Harris v Harrison [1963] Crim LR 497; Walden v Hensler (1987) 163 CLR 561; The Queen v Lopatta (1983) 35 SASR 101; The Queen v Langham (1984) 36 SASR 48, considered.

R v VAN DEN HEUVEL
[2005] SADC 83
Introduction

The accused Adrian Van Den Heuvel is charged on information as follows:
First count
Statement of Offence
Aggravated Serious Criminal Trespass in a Place of Residence. (Section 170(2) of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Adrianus Van Den Heuvel on the 1st day of June 2004 at Elizabeth Downs, entered the place of residence of Margaret May Van Den Heuvel as a trespasser, with the intention of committing an offence therein, namely an offence against the person, and at the time of the trespass he was in possession of offensive weapons.
Second count
Statement of Offence
Common Assault. (Section 39 of the Criminal Law Consolidation Act, 1935).
Particulars of Offence
Adrianus Van Den Heuvel on the 1st day of June 2004 at Elizabeth Downs, assaulted Theodorus Aaron Van Den Heuvel.
Third Count
Statement of Offence
Attempted Wounding with Intent to do Grievous Bodily Harm. (Sections 21 and 270A of the Criminal law Consolidation Act, 1935).
Particulars of Offence
Adrianus Van Den Heuvel on the 1st day of June 2004 at Elizabeth Downs, attempted to unlawfully and maliciously wound Margaret May Van Den Heuvel, with intent to do her grievous bodily harm.
On being arraigned the accused pleaded not guilty to each charge. The accused had elected for trial by judge alone and the trial took place before me sitting without a jury accordingly. The accused was represented by Mr Stokes. Ms Trengove appeared for the Director of Public Prosecutions.
Prosecution Case: a short description
On the prosecution case the charged offences were the culmination of the accused’s longstanding hatred of his estranged wife Margaret Van Den Heuvel and her partner Jack Neef. The prosecution contends that the accused despised his wife and Mr Neef for having formed a relationship and for his wife having acquired a share of the matrimonial assets greater than he believed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Van Den Heuvel

Details

AGLC: R v Van Den Heuvel [2005] SADC 83
Case: [2005] SADC 83
Decision Date: 14 July 2005

CaseChat Overview and Summary

Adrian Van Den Heuvel is charged with aggravated serious criminal trespass, common assault, and attempted wounding with intent to cause grievous bodily harm. He is alleged to have broken into the home of his estranged wife, Margaret Van Den Heuvel, with intent to harm her and her partner, Jack Neef, and to have assaulted and attempted to stab them. The accused pleaded not guilty and the trial proceeded before Judge Millsteed. The accused was found guilty of aggravated serious criminal trespass and attempted wounding with intent to cause grievous bodily harm, but not guilty of common assault. The judge found the accused to be an unsatisfactory and unreliable witness, noting inconsistencies in his testimony and demeanour. The judge accepted the evidence of the prosecution witnesses as credible and reliable. The judge found that the accused entered the home with the intention of assaulting his wife and Mr Neef, armed with knives, and that he knew he was trespassing. The accused was not found to have a legal claim of right to enter the premises. The judge found the accused not guilty of common assault, finding that it was not proven beyond reasonable doubt that he intended to swing the knife at his son, Theo. The judge found the accused guilty of attempted wounding with intent to cause grievous bodily harm, finding that he deliberately attempted to stab his wife with the knife, intending to cause her grievous bodily harm.

Orders