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 she deserved.
It is alleged that on the afternoon of 1 June 2004 the accused entered the home of Mrs Van Den Heuvel and Mr Neef at Elizabeth Downs through a rear window, which he broke with a screwdriver. Mrs Van Den Heuvel and Mr Neef were not at home at the time. The prosecution contends that the accused entered the house, armed with three knives, with the intention of assaulting them when they returned home (count one).
Later that afternoon Mrs Van Den Heuvel arrived home with her son Theodorus Van Den Heuvel who, for ease of expression, I shall refer to as Theo. The accused was inside the house at the time. They discovered the broken window and attempted to call the police on Theo’s mobile phone. The accused then climbed out of the broken window and ran behind some bushes in the backyard where he was confronted by his wife and Theo. The accused was asked to come out and emerged from the bushes holding a kitchen knife in his right hand.
The prosecution contends that the accused then attempted to stab his wife with the intention of causing her grievous bodily harm (count three) and swung the knife at Theo (count two). The accused was then thrown on to the ground by his son and restrained until the police arrived.
The accused was arrested by Constables Platt and Keenan and conveyed to the Elizabeth Police Station where he was charged and interviewed. In the course of the tape-recorded interview the accused admitted that he broke into the house with intention of harming Mrs Van Den Heuvel and Mr Neef but denied committing the offences that are the subject of the second and third counts.
The prosecution called the following witnesses:
§Margaret Van Den Heuvel
§Theo Van DenHeuvel
§Johannus Van Den Heuvel (the accused’s brother)
§Steven Plummer (the accused’s employer)
§Constable Christopher Platt
§Constable Mathew Keenan
The Defence case: a short description
The accused gave evidence in his defence. He did not dispute that he resented his wife and Mr Neef for the reasons advanced by the prosecution but denied that he broke into their home to harm them. He claimed that he broke in and waited for them to return home so that he could discuss a property settlement with them. He also wanted to retrieve some items, which he considered belonged to him. He said that his statements to police about wanting to harm his wife and Mr Neef were not true and that they were uttered because he was in an emotional and intoxicated state at the time. He conceded that he produced a knife when he was confronted by his wife and son in the backyard but denied committing the acts upon which counts two and three are based.
The prosecution case in more detail
Background facts
The accused and Mrs Van Den Heuvel are 65 and 59 years old respectively. The accused was born in the Netherlands and immigrated to Australia in 1952. He married Mrs Van Den Heuvel in 1964.
They have two sons Theo, aged 30, and Johannus, aged 40. Mr and Mrs Van Den Heuvel’s matrimonial home was situated at 24 Hambridge Road Davoren Park. They also owned a shack near Murray Bridge where they spent weekends and holidays. Throughout the marriage the accused worked as carpet layer. Mrs Van Den Heuvel had several jobs before she eventually secured employment as a school services officer at SwallowCliffe Primary School. The accused has two brothers Frank and Johannus (Joe). Their sister Dine died in 1997. At the time of her death Dine was married to Jack Neef. Mr Neef is now 75 years old .
The separation
There were difficulties in the marriage associated with the accused’s addiction to gambling which resulted in the accused and Mrs Van Den Heuvel separating on about 10 November 1999. Though there were difficulties in the marriage the accused was never violent towards his wife and sons. According to Mrs Van Den Heuvel the separation was initiated by the accused. He left the matrimonial home and went to live by himself in the shack at Murray Bridge. He took with him some furniture and a boat and gave Mrs Van Den Heuvel some items from the shack. She remained in the matrimonial home.
In early 1999 the accused transferred his interest in the matrimonial home to his wife in exchange for her interest in the shack at Murray Bridge. The transfer documents were signed by the accused and Mrs Van Den Heuvel at a family function in the presence of Mr Neef. Mrs Van Den Heuvel deposed that the separation was amicable and that the accused appeared to be happy with the division of the matrimonial property.
Mrs Van Den Heuvel said that the accused remained in contact with her for several months after their separation. About once a week they had a meal and played cards together with Mr Neef and the accused’s brother Frank. Apparently they enjoyed a good relationship with Mr Neef and had socialized with him regularly following the death of his wife in 1997.
Mrs Van Den Heuvel’s evidence disclosed that, in the course of 1999 the accused gradually cut himself off from his wife family and friends to the point where he rarely had contact with them. Mrs Van Den Heuvel’s friendship with Mr Neef continued and in about August 2000, a relationship developed between them. Shortly thereafter, Mrs Van Den Heuvel met the accused at a hotel where he was working and informed him of the relationship. He was obviously upset and walked away without speaking to her. She did not see him again until the day of the alleged offences.
In about October 2000 Mrs Van Den Heuvel commenced living with Mr Neef at his Parafield Gardens home. In June 2003 Mr Neef sold his home and purchased the house at 12 Mavros Road Elizabeth Downs. Mr Neef and Mrs Van Den Heuvel then moved to that address.
Threats
In late 2000 Mrs Van Den Heuvel received from the accused a letter dated 21 December 2000 (exhibit P4). The letter had been posted to the matrimonial home and was addressed to Ms Clubb (Mrs Van Den Heuvel’s maiden name). The letter demanded that Mrs Van Den Heuvel deliver to the accused, through Theo, various items of property including her wedding ring and other jewellery because “dead people don’t wear jewelry (sic)”. She was disappointed with the accused’s conduct but decided to ignore the letter.
A few weeks later Mrs Van Den Heuvel received another letter from the accused (exhibit P5) which was addressed to Ms Clubb. The envelope containing the letter was postmarked 3 January 2001. In the letter the accused threatened to institute legal proceedings for “half of house and contents” because “[he] had paid for most of them anyway”. The letter concluded with the following words:
As I told Theo, you and him [Jack Neef] and his and your family don’t exist anymore. I hope my kids will not be prepared to bury you as that should now be his responsibility.
Mrs Van Den Heuvel did not respond to the letter.
Mrs Van Den Heuvel did not hear from the accused again until she received received a letter from the accused in late 2003. The letter (exhibit P6) was sent to 12 Mavros Rd Elizabeth Downs in an envelope postmarked 25 December 2003. The letter contained further threats of legal proceedings and asserted that the accused had failed to read the documents transferring his interest in the matrimonial home to Mrs Van Den Heuvel before he signed them. Mrs Van Den Heuvel did not reply to the letter. At about the same time she received a telephone call at 12 Mavros Rd Elizabeth Downs. The caller said ‘dead” and then terminated the call. Mrs Van Den Heuvel recognised the accused’s voice but did not report the incident to the police. She had no further contact with the accused until 1 June 2004.
Following the accused’s arrest on 1 June 2004 the police found a sportsbag at 12 Mavros Rd which belonged to the accused. The bag contained various items including 32 foolscap pages on which the accused had written a history of his life (referred to in the evidence as the accused’s book - exhibit P20).
The book discusses the circumstances of the accused’s separation from his wife and the effect that it had on him. It also contains statements which disclose, on the prosecution case, the accused’s resentment of his wife and Jack Neef and his desire to harm them. In particular the prosecution relied on the following passages:
Since they moved in together I knew I would never ever have her back mention her name or go anywhere she might be. I have not been to any of my brothers or sons birthdays not ever to my brothers funeral knowing she would be there. As she has been accepted by my only four remaining brothers. I do not hate them for this only their lack of compassion for me, I still think of her daily but only in a derogatory way. If I was in Adelaide I have no doubt I would kill them both. Then I would either kill myself or spend the rest of my life in jail which from where I am at now does not seem such a bad idea. My life now consists only of work, eat, sleep and work more. When not at work I spent a lot of money at the local hotel what else is there.
But I soon realised after I signed a transfer form from earlier, that all she wanted my house and contents and my brother in law who is 20 years her senior. Well she got both I have written her that I want some things out of my house which I am entitled to, I am actually entitled to half if not more of the property. I signed over to her according to family law brochures. I have not even received half of our photos not much to ask is it? I have since asked for other items but have not had a reply by letter or phone.
I have a huge problem coping with the loss of her or my pride of not being able to keep her. I do not know what I am going to do there doesn’t seem much point of going on. I keep thinking one of us has to die, preferably her. (my emphasis).
It is unclear as to the precise time when the quoted passages were written. The accused could be no more specific than to say that they were written sometime after his wife commenced living with Mr Neef in October 2000. However, the opening words in the book (“The time, South Australia, 2002…”) indicate that the accused commenced writing the book no earlier than 2002.
Permissible use of threats
No objection was taken to the admission into evidence of the above mentioned threats. I remind myself that it is not permissible to use the evidence of threats for the purpose of leading to the conclusion that the accused is a person likely from his conduct or character to have committed the charged offences (propensity reasoning): Pfennig v The Queen (1995) 182 CLR 461 at 475. However, the evidence in question is relevant evidence and admissible not to prove a general criminal disposition but to show the nature of the relationship between the parties: Harriman v The Queen (1988-89) 167 CLR 590 at 630-631. In particular the evidence, if accepted by me, serves to show that the accused harboured feelings of animosity towards his wife and Mr Neef and bears upon the issue of motive: see Wilson v The Queen (1970) 123 CLR 334 at 339, 344; The Queen v Hissey (1973) 6 SASR 280 at 288.
Before I leave the topic of propensity I should mention that the accused’s book contained passages in which he referred to having committed offences in the past. These particular matters were irrelevant and inadmissible. Accordingly, I have ignored them. I should also mention that in the course of Mrs Van Den Heuvel’s evidence in chief she suggested that there was an occasion when the accused stole money to fund his gambling addiction. This aspect of her evidence was clearly inadmissible and I have not had regard to it.
Late May 2004
The fortieth wedding anniversary of Mr and Mrs Van Den Heuvel fell on 23 May 2004 only eight days before the day of the alleged offences. On the prosecution case this milestone magnified the accused’s despondency and further inflamed his feelings of hostility towards his wife and Mr Neef.
In support of that contention the prosecution called Mr Steven Plummer to give evidence of his observations of the accused during the days preceding the alleged offences. Mr Plummer is the proprietor of a carpet company situated at Murray Bridge called Bridge Carpet Corporation. Between about 2001 and 1 June 2004 his company sub contracted carpet-laying work to the accused. Mr Plummer saw the accused daily at his business premises and occasionally socialised with him.
On Friday 21 May 2004 the accused arrived at Mr Plummer’s place of business dressed in a suit and said to Mr Plummer: “Thanks very much for the work I’ll see you later”. Mr Plummer gained the impression from what the accused said and the manner in which he spoke that something was bothering him and that he intended to leave his employment. Mr Plummer asked him what was wrong but he “never got any real straight answers out of him”. Mr Plummer said that he thought the accused was “slightly suicidal”. In an effort to lift the accused’s spirits Mr Plummer invited the accused to his home for dinner the following night. The accused accepted the invitation.
I ruled in the course of the trial that Mr Plummer’s opinion that the accused was slightly suicidal was inadmissible because he did not have the expertise to express such an opinion. Nonetheless, his general observations of the accused were relevant to an evaluation of the prosecution’s contention that the accused was seriously despondent at the time.
On Saturday 22 May the accused attended Mr Plummer’s home and had dinner with Mr and Mrs Plummer and a female friend of Mrs Plummer. Mr Plummer said that the accused appeared to be in good spirits. There was no discussion about what may have been worrying the accused the previous day. Mr Plummer said that the accused attended work the following week and on Monday 31 May. He did not suggest that the accused gave any further indication that he was troubled or agitated.
At about 7.30pm on Monday 31 May 2004 the accused telephoned his brother Joe Van Den Heuvel. Joe Van Den Heuvel testified that he rarely received calls from the accused. He said that he could not remember the details of the conversation except that towards the end of their discussion he asked the accused about his plans. The accused replied: “You will read about it in the paper either tomorrow or the day after”.
In cross-examination the witness agreed that his evidence was inconsistent with a statement that he gave to the police on 22 October 2004 in which he said that the accused replied “you will see what happens tomorrow.” He conceded that his statement to the police was correct. The prosecution contends that the accused’s statement on the telephone was a hint of his intention to confront and harm his wife and Mr Neef the following day. In cross-examination Joe Van Den Heuvel agreed that during the conversation on the telephone he informed the accused that Mrs Van Den Heuvel and Mr Neef had travelled to Holland to visit Mr Neef’s relatives. The trip had taken place earlier that year.
1 June 2004
The accused fails to attend work
At about 7.30 am, on 1 June 2004, Joe Van Den Heuvel rang the accused’s home because he was worried by the accused’s remarks on the telephone the previous night. He rang twice but the calls were not answered.
At about 8.30pm Mr Plummer arranged for one of his employees to attend the accused’s home to find out why he had failed to turn up for work that day. The employee reported that the accused was not at home. At about 10.30am Mr Plummer went to the accused’s home because he was concerned that something might have happened to him. He entered the house through an unlocked door. The accused was not there. Mr Plummer noticed that there were a couple of beer bottles in the lounge room and then left.
Both Mr Plummer and Joe Van Den Heuvel telephoned the police that morning expressing their concerns about the accused. Joe Van Den Heuvel subsequently attended the Darlington Police station and filed a missing persons report. That morning the police arranged for a police officer to attend Swallowcliffe primary school to speak to Mrs Van Den Heuvel. The officer informed Mrs Van Den Heuvel that her husband had failed to attend work and that police enquiries had established that he had travelled to Adelaide and that his precise whereabouts were unknown. The officer expressed concern for her safety. Mrs Van Den Heuvel subsequently contacted Theo and arranged for him to accompany her home.
Mrs Van Den Heuvel arrives home
Shortly after 3pm Mrs Van Den Heuvel left the school and drove home. Theo followed in his car. They parked their cars in the street outside and then walked down the driveway on the western side of the house to a roller door. Mrs Van Den Heuvel unlocked and opened the door. They then walked through a covered carport to a gate, which gave access to the back yard. Upon entering the backyard they saw that the kitchen/dining room window at the back of the house had been smashed. Broken glass from the window had been stacked behind a small garden table against the rear wall of the house.

They then walked to the south-eastern corner of the house where the back door was located. Upon looking down the eastern side of the house they saw a carry bag on the ground nearby and decided to ring the police. They then returned to the western side of the house where Theo attempted to contact the police on his mobile phone. He could not get through so Mrs Van Den Heuvel attempted to ring the police on a telephone in a shed behind the carport. At about that time they heard the sound of breaking glass coming from the rear of the house.
The incident in the backyard
Theo went to the gate on the western side of the house and saw the accused run through the back yard towards the rear fence. Theo followed the accused. His mother was close behind. They found the accused hiding behind some bushes in a garden near the rear fence. Theo asked the accused to come out. At that point the accused came out from behind the bushes with his right hand behind his back. He then moved towards Theo and Mrs Van Den Heuvel who were standing in front of him on a paved area adjacent to the garden bed. In general terms Theo was standing almost directly in front of the accused. Mrs Van Den Heuvel was positioned to the right and slightly to the rear of Theo.
There is a conflict in the evidence given by Mrs Van Den Heuvel and Theo in relation to the events that followed.
Mrs Van Den Heuvel’s account
Mrs Van Den Heuvel testified that when the accused emerged from behind the bushes he stepped over the garden border onto the paved area and moved towards Theo. She said that she was standing slightly behind and to the right of Theo and that she had an unobstructed view of the accused. She said that the accused quickly moved his right hand from behind his back and made a stabbing motion towards Theo. She saw “a flash of silver” and gained the impression that the blade of the knife was protruding from the front of the accused’s right hand. At that point Theo raised his left hand in a defensive manner and bent forward. She believed that Theo had been stabbed and screamed.
According to Mrs Van Den Heuvel the accused then moved towards her and so she turned to her left to run away. Mrs Van Den Heuvel said that she had taken “two or three or maybe four footsteps” when she looked down and saw the blade of the knife close to the right side of her waist. She then pushed the blade away with the palm of her right hand (count three). The accused was to her right and behind her at the time. She believed that she was in the process of running away at the time.
Mrs Van Den Heuvel said that after pushing the knife away she realised that she was no longer being chased. Upon turning around she saw Theo holding the accused around his shoulders and neck. Theo then threw the accused to the ground and pinned him down. The accused was still holding the knife in his right hand. Theo then told him to let go of the knife and the accused complied. She said that Theo then kicked the knife away. Mrs Van Den Heuvel deposed that the accused stopped struggling after he was pinned to the ground though it was obvious that he was angry and upset with her. She said that he called her “ a fucking cunt” and complained that nobody cared about him. She told him that they had always cared for him.
Theo Van Den Heuvel’s account
Theo testified that when the accused stepped out from behind the bushes the accused was holding his right hand behind his back. He had a cold look on his face. Theo said that he was scared because he was unsure of what was going to happen. He said that as the accused moved towards them that the accused quickly brought his right hand around to the front of his body. The accused then lunged at Mrs Van Den Heuvel with a knife that he was holding in his right hand (count three). Theo said that the accused’s right arm was extended in front of his body at about waist level. He said that the accused was about two to three feet from Mrs Van Den Heuvel when the accused commenced to lunge at her. He found it difficult to say how close the blade of the knife got to his mother because of the speed at which the incident happened but added that it got “close enough to stab her”. He went on to explain that his mother was facing the accused and that she tried to push the knife away from her body at about the waist level. He did not see whether she made contact with the knife.
Theo testified that he then grabbed or tried to grab the accused’s right wrist and forearm. The knife was then swung in his direction. He said that the tip of the blade was pointed towards his stomach and that it was about 15-20cms from his stomach (count two). He then managed to grab the accused’s right forearm and force him onto the ground while keeping the knife away from himself. The accused ended up on his back. Theo then restrained the accused by kneeling on his right arm and pinning his other arm across his body. The accused then stopped struggling. At some stage the accused released his grip on the knife and Mrs Van Den Heuvel kicked it away. Theo could not recall whether the accused directed any abusive remarks at his mother.
The police attend
Mrs Van Den Heuvel subsequently went to the home of a neighbour and telephoned the police. At about 4pm a police patrol comprising Constable Keenan and Constable Platt attended 12 Mavros Road and found the accused in the backyard being held down by Theo. The accused was wearing a blazer, shirt, tie, trousers and a pair of shoes. A kitchen knife with a blade about 20cms long, which the police later collected, was lying on the ground nearby (exhibit P9).
Constable Keenan asked the accused what had happened. The accused responded by asking the police officer if he had a gun stating that he wanted to put a bullet through his head. Constable Keenan subsequently asked the accused for his name. The accused refused to give it. He was then handcuffed. At that point Constable Keenan noticed the blade of another kitchen knife (exhibit P14) protruding from a pocket on the outside of the accused’s blazer. He seized it. He then found a third kitchen knife (exhibit P15) in a pocket inside the blazer.
Constable Keenan proceeded to inform the accused that he was under arrest. The accused remarked “…you’d better lock me away for a long time because I’m going to get her”. Constable Keenan then escorted the accused to the police car. On the way to the car the accused asked the police officer to get his bag. He said it was ‘just around the corner”.
The police subsequently located a sports bag on the eastern side of the house near the south-eastern corner close to where the back door was situated. The bag contained a sleeping bag, tracksuit top, a shaver, a beanie, a writing pad and the book (exhibit P20). The accused admitted that the sports bag and its contents belonged to him. The police also located a screwdriver (exhibit P17) near the broken dining room window at the rear of the house.
A subsequent inspection of the house revealed that the rear external security door had been forced open. The internal rear wooden door was damaged in the vicinity of the lock but the door had not been opened. A flyscreen had been removed from the window of the craft-room on the eastern side of the house. Damage to the bottom of the window frame indicated that there had been an attempt to force it open. No property was missing from the house. The only item that had been disturbed was a photo album that had been removed from a cupboard in a spare bedroom at the front of the house. The album was found on the bed in the main bedroom. The album, which had been opened, contained photographs of Mr and Mrs Van Den Heuvel and their sons.
The interview in the police car
Upon being taken to the police car the accused was placed in the back seat where Constable Keenan had an audio-taped conversation with the accused. In the course of the conversation the accused was informed that he would be detained while further investigations were conducted. He replied: “Just put me away for… (indecipherable)…will you, if you let me out, she will fucking go”.
At 4.33pm Constable Keenan commenced a video-taped conversation with the accused in the police car. The conversation was completed whilst the accused was being conveyed to the Elizabeth Police Station by Constables Keenan and Platt. In the course of that conversation the accused made the following statements:
- If it wasn’t for my son holding me down, I would have killed her.
- Last thing I expected my son to be there. Hasn’t worked out, simple as that. Actually it’s fucking hard. Well I planned to be at the Elizabeth Police Station tonight. But not this way. I would have got rid of her by now, but que sera sera.
- I’ve one mission, I’ve had for the last four years, to get rid of her, besides that I’m a very nice fellow. People have tried to talk me out of it for the last four days… it’s taken four years to get this far.
- I was hoping to work out things differently today. I still would have been in your custody. I wanted to kill them, I wanted to get rid of them two and go to gaol for the rest of my life, cause I’d be quite happy to and I might top myself to get rid of ‘em didn’t I.
The interview at the police station
Shortly after 7pm the accused was interviewed at the Elizabeth police station by Constable Keenan in the presence of Constable Platt. The interview was video-taped.
During the interview the accused did not conceal his hostility towards his wife and Jack Neef. He was critical of their relationship and suggested that he deserved a greater share of the matrimonial assets than he had received. He said that he had sent his wife “some nasty letters” but maintained that they were not threatening letters. He said that in his letters he asked for a greater share of the matrimonial assets and for some of the family photographs. He complained that Mrs Van Den Heuvel “quickly sold the house on [him]” and provided him with only photocopies of some of the photographs that he had requested.
He said that following the separation he suffered from depression for which he was prescribed medication. He said that he had not taken his medication for two years but had never considered going back onto his medication because “this was the answer”. He admitted writing the book and added:
And that’s got some details in there. I didn’t ask for much, but she got my brother-in-law and she got my fucking home, I built with my own hands, and I didn’t even get a pair of photos. So she, she deserves to go.
The accused’s statements in relation to count one
The accused made various statements that effectively amounted to a confession to having committed the offence of aggravated serious criminal trespass.
He said that he went to his wife’s home that day with three kitchen knives for the purpose of attacking his wife and Mr Neef. Indeed he claimed that he wanted to kill or seriously wound them.
In the following exchange he asserted an intention to kill:
QOkay, also when we walked up passed the window, there was a window on the southern side of the house that had been broken and there was a yellow screwdriver there also, and it also has been seized, just for your own information. All right, it’s been alleged that about 3:15 today um, you’re ex-wife, ex-partner Margaret attended at her home address in company with her son Theo, um, walked out, into the backyard and heard a smash of glass. What can you tell me about this?
A     Do you want to hear the truth.
Q     Yep.
A     Or do you just want to hear what they’re saying.
Q     Nup.
A     If my son hadn’t been there she would be dead, simple as that.
Q     Okay.
AThat’s what I came own here to do, and she deserves to fucking die too.” (My emphasis)
Later he suggested that he intended to kill or seriously wound his wife and Mr Neef:
QOkay for the purpose of the tape, what was your purpose of coming down to Adelaide, today?
A     You know very well
Q     And for the purpose of the tape?
AI hope to achieve what I came down for and get rid of the wife and my brother-in law.
Q     And when you say get rid of, what do you mean by that?
A     Well whether I wounded them seriously or they died I couldn’t careless.
Q     Okay
AI really couldn’t careless, they could put me away for life, or I might have shot myself, I don’t know what would have happened after that. But they deserve to die. I got nothing for forty years. (My emphasis)
Subsequently he asserted an intention to kill rather than merely injure:
Q       Okay, what’s obviously your intent was to go there to either injure or kill?
A      Kill.
Q       Okay. Why.
A      Why.
Q       Well yeah, what, what has all stemmed from?
A      What’s it stem from?
Q       Yes. Obviously you said before that it was, like because.
A      Yeah, four years ago it stemmed from there. (My emphasis)
The accused said that upon his arrival at the house he knocked on the door but there was no person at home. He then climbed over the fence and looked around for a key to the house. He said that he then went around to a side window, removed the flyscreen and tried to open the window with a knife. He was unsuccessful so he went to the rear of the house and smashed the dining room window with a screwdriver that he had found inside the shed. He then climbed through the broken window and searched the bedrooms. He said that he found some photograph albums in a bedroom cupboard and placed them on a bed.
The interview proceeded as follows:
QOkay at that stage were you armed with any weapons, such as knives?
A     They were in my jacket
Q     They were in your jacket. So, did, were they in your jacket prior to arriving at the address, at 12 Mavros?
A.    Yes.
A     And how many knives did you have on you at that stage?
Q     Three I think, that’s all I had. Kitchen knives they are.
The accused said that he then waited for his wife and Mr Neef to return home:
QAll right was the purpose of actually entering the house. To collect personal property or to wait for someone to get home or what was the purpose?
A     Someone to get home.
Q     Okay, who were you expecting to come home?
A     I didn’t care which one.
QSo when you say you didn’t care which one, do you mean your wife Margaret or your
A     Brother in law.
The accused proceeded to explain that he was not expecting his wife to arrive home with Theo. He said that he would have stayed in Murray Bridge if he knew that his son was going to be at the house and added “it would have eventually happened”.
The accused’s statements in relation to count two
The accused denied the allegations which are the subject of the charge of common assault. He said that when he emerged from the garden the knife was concealed behind his back because Theo was present. He denied lunging at Theo with the knife and insisted that he would never have done such a thing because Theo was the only person who had been speaking to him.
The accused’s statements in relation to count three
The following exchange occurred in relation to the allegation that the accused attempted to stab his wife:
QOkay. And it states at the last lunge Theo pushed you away with his right hand and you, er, spun around and then you started stabbing at Margaret, is that correct?
A     That’d be correct.
Q     And it states she pushed you and tried to stab her again?
A     Pardon, She pushed me?
Q     Yep.
A     She never got within six foot of me.
Q     Okay.
ATheo grabbed me, and well, you’ve seen him he’s about six foot five (6’5”) at thirty nine (39) and I’m sixty four (64) and about sixty kilos, and I wouldn’t hurt him no matter what happened.
QAnd it’s alleged that er, you were standing about two feet away and at one stage Margaret was pushing the knife down as, as you tried to stab her.
A     Never. Never, ever.
Q     It is alleged that er
A     She never got close.
Q     How close do you, would you say that you got to Margaret?
AIf I was here, and I’d say it simply, probably, there’s a little shed there, little shed there, the bush was there, I’ve come from behind the bush. I’d say at the best, five feet.
Q     Five feet. But at
A     ‘Cause she screamed and she ran.
Counsel for the prosecution contended that the passage underlined above was tantamount to an admission that the accused had tried to stab his wife. I do not accept that submission. The question asked by the police officer contained several allegations. It is not clear whether the accused was acknowledging that it was correct that Theo had pushed his hand away, that the accused had spun around, that he started stabbing at his wife or that all of those things occurred. It would be dangerous to interpret the accused’s answer to the police officer’s triple barrelled question as an admission to an attempt to stab his wife. Furthermore, the accused’s subsequent answers, to my mind, effectively amounted to a denial of that allegation.
Evidence relating to intoxication
The question of whether the accused was in a state of intoxication that afternoon was canvassed in the course of the prosecution case. Theo and Mrs Van Den Heuvel testified that they did not smell alcohol on the accused. Nor did his demeanour or speech suggest that he was affected by alcohol. Constable Keenan said that he did not detect any signs of intoxication during the time the accused was in his custody.
Constable Platt’s evidence disclosed that on 1 June 2004 he completed a “prisoner screening form” (exhibit P12) prior to the accused’s interview at the police station. In the form he reported that the accused was mildly intoxicated. However, he did not state his reasons for reaching that conclusion. He testified that he did not have an independent recollection of the accused’s condition at the time. I will return to the issue of intoxication later. Constable Platt also recorded in the form that the accused appeared irrational or disturbed. He explained that he made that entry because the accused had made threats to kill.
The bruises
On Wednesday 2 June 2005 Mrs Van Den Heuvel noticed that one knee, which had been reconstructed earlier that year, had developed swelling. Mrs Van Den Heuvel testified that she must have twisted her knee when she turned to run away from the accused.
On the morning of Thursday 3 June 2005 she noticed four bruises on her upper right arm that were photographed by a colleague at work later that day (exhibit P10). The prosecution contended that the bruises must have been caused by the accused grabbing Mrs Van Den Heuvel when she was trying to run away although she could not remember that having happened.
I am not prepared to draw that inference. Neither Mrs Van Den Heuvel nor her son deposed to such an incident having occurred. In addition the accused denied grabbing his wife. Furthermore no medical evidence was adduced by the prosecution as to the likely age and cause of the bruises. In the circumstances an innocent explanation for the bruises cannot be discounted. I have ignored the bruises in analysing the relevant events.
The defence case in more detail
The separation
The accused gave evidence concerning the marital break-up which he conceded was a consequence of his gambling problems. He said that as a result of the separation he suffered acute anxiety and stress for which he was prescribed medication by Dr Oldham at Murray Bridge. Despite transferring his interest in the matrimonial home to his wife in early 1999 he believed that they would eventually resume living together. That remained his belief until he discovered that his wife had formed a relationship with Mr Neef. He admitted that he has been angry with his wife since then.
In the course of cross-examination the accused said, as he told police, that he suspected that Theo was the result of an affair that his wife had had over thirty years ago with a man named Pearson. The accused went on to say that when he discovered that his wife had formed a relationship with Mr Neef he suspected that their relationship had commenced before the break-up of their marriage.
The threats

The accused denied making a threatening telephone call to his wife in late 1999 but admitted that he wrote the letters (exhibits P4, P5 and P6) and the book (exhibit P19). In cross-examination the accused accepted that his written remarks about his wife and Mr Neef were triggered by his feelings of resentment but insisted that he never really intended to physically harm them. He made the point that there were ample opportunities for him to have carried out the threats before the date of the charged offences.
Late May 2004
The accused disputed that his conduct at work on Friday the 21^st May 2001 was unusual. He suggested that it was not uncommon for him to turn up at the business premises of Mr Plummer on a Friday afternoon dressed in a suit and tie to collect his cheque because he would then go shopping. He said that he did not tell Mr Plummer that he intended to stop working for him and implied that Mr Plummer must have misconstrued his remarks i.e. “thanks very much for the work I’ll see you later”.
The accused, however, conceded in cross-examination that he was saddened by the arrival of his fortieth anniversary on the 23^rd of May 2005. He said that for “the whole week [he] wasn’t very good at work” and that “the boys and the bosses [at work] knew that something was going on.” He said that on the night of Saturday 22nd May he discussed his problems with Mr and Mrs Plummer’s friend who had “settled several marriages”. As a result of speaking to her, he subsequently rang a person named Bob Tutton who advised him to contact a solicitor. The accused said that he rang a solicitor within the next three to four days.
The accused said that he rang his brother Joe on the night of Monday 31 May 2004 to discuss a summons that he had received from the police in relation to an accident. He agreed that in the course of the conversation Joe asked him about his plans. The accused said that he replied: “You’ll know what happens in the next few days.” The accused claimed that he was referring to the possibility of receiving a cheque from his wife in settlement of the property dispute, although he did not specifically mention this to his brother. He suggested that the funds that he hoped to receive from his wife would enable him to move from Murray Bridge to Adelaide. In cross-examination the accused agreed that in the course of the telephone call his brother told him that Mrs Van Den Heuvel and Mr Neef had travelled to Europe. He said the news upset him because he believed that his money had been used to pay for the trip.
1 June 2004
The accused leaves home
Although he had received his wife’s share of the premises at Murray Bridge in exchange for his share of the matrimonial home the accused testified that his wife owed him, or at least he believed that his wife owed him, $125,000 for his share of the matrimonial assets. He said that on the morning of 1 June 2004, he left his home with the intention of asking his wife to give him a cheque for that amount. The accused said that he believed that his wife would give him the cheque because he had written to her requiring a settlement of his demands. However, he also asserted that he took the three kitchen knives with him because he believed that they might be needed for the purpose of frightening his wife into giving him the cheque. He said that he carried them to the house in the football bag.
The accused said that he initially travelled by train and bus from Murray Bridge to the Rose & Crown Hotel at Elizabeth South. He arrived there at about 10.30am. On the way he read the book that he had written. He said that he hoped to see his brother Frank at the hotel but Frank did not turn up. According to the accused he remained at the hotel until about 2.00 – 2.30pm. He then caught a taxi to 12 Mavros Road.
During the time he was at the hotel he drank some beer and port. He also had a meal. In cross-examination he estimated that he consumed about four stubbies of beer and about three or four ports. He said that he did not feel drunk. He agreed that he told the police that he drank only two beers that day but asserted that he lied because he was worried that the police might arrest him for being drunk.
The accused breaks into the house
The accused said that upon his arrival at 12 Mavros Road he knocked on the front door but there was no answer. He then looked inside the house through the lounge room window and saw some paintings, a clock and some other items that he regarded as his property. He said he was shocked and angered by what he saw and went to the rear of the house where he knocked on the back door. There was no response. He then walked around to the eastern side of the house, placed the bag that he was carrying on the path and removed the flyscreen from the craft-room window. He tried to force open the window with a knife but was unsuccessful.
The accused said that he then went to the back door and attempted to force it open with a knife. He failed. He then tried to open the rear kitchen/dining room window with a screwdriver that he had found inside the shed. He eventually gave up and smashed the window with the screwdriver. He stacked the broken glass from the window against the back wall behind the small garden table and then entered the house through the broken window. The accused claimed that he left the three knives that he had brought to the house on the garden table. He also left the screwdriver and his blazer outside. He left them on the ground near the table.
The accused said that he entered the house with the intention of waiting for his wife or Mr Neef to arrive home.
In relation to his intention the following exchange occurred in examination in chief:
Q.    When either of them got home, what was your intention.
AOne would have got home first and started talking to them about – and then Jack, or whoever came first – got together and sorted things out.
QDid you have any attitude at all to any of your personal property that might have been in the premises.
AWell, that would have got settled on the spot. That would have been all settled. A big list was done and it was going through the Family Court at the time.
Then later:
Q     What about the personal property, things like paintings, clocks, albums.
ASome of the property, her presents she bought me and I bought her, I would have taken what I wanted at the time and I it was a clock and a couple of carvings we have had 30 or 40 years, a couple of old cameras, personal stuff, really belongs to me, or those joint property.
Q     Did you have an intention you would take those on that day or some other day.
A     No, I think I would have settle for that. It’s not that much to carry.
Q     Did you intend to use any of the knives that you had taken with you.
A     Well, when I was in the house I didn’t have the knives. The knives were outside.
The accused went on to say that after he gained entry to the house he went into the main bedroom where he looked through cupboards but found nothing of interest. He then went into the spare bedroom and located some photograph albums in a wardrobe. He said that half of the photographs belonged to him and that he had been asking for their return for several years. In cross-examination he agreed that he was saddened by seeing photographs of his wife and sons.
In the course of examination in chief the accused suggested that he had a right to enter the house:
QWhen you went on to the property in the first place, did you think that you had any permission to be on the property at 12 Mavros Road
AWell, you see I believe that property was as much mine as hers. I believe that even today.
Q     Did you think Mr Neef might also have an interest in it.
AI didn’t know until the prosecutor lady there read it out the other day that it’s in his name. I didn’t know that. I thought it was in my wife’s.
HIS HONOUR
Q     Did you think you had permission to break the window to get inside.
A     No, I didn’t have permission.
The topic was pursued in cross-examination :
Q     You weren’t there with an intention to steal?
A     No, I was not.
Q     You weren’t there to take back anything that you felt was yours?
A     Not without their permission, no.
Q     You would concede that you didn’t have their permission to be there that day.
A     I would agree with that.
Q     You would concede that it was wrong to be in their house.
A     No, I don’t think so.
Q     It was wrong to break the window, wasn’t it.
A     That’s the only way I had of getting in.
Q     You say it was right for you to be there.
A     I believe I had the right to be there.
HIS HONOUR
Q.    Who gave you that right.
A     I believe I had the right. As far as I’m concerned, half of that property was mine.
XXN
Q     That was a property you’d never lived in.
A     That was a property I’d never lived in.
Q     Didn’t have a key.
A     I’ve never seen it before.
Q     You didn’t own that property, did you. You weren’t on the title.
A     I believe I own that morally because it was bought with my money.
Q     Morally, you felt that some of it was yours.
A     Yes
Q     Legally, it wasn’t yours.
A     I was explained that by Mr Oliver Koehn.
Q     You don’t usually go into people’s houses that aren’t your own.
ANo, I don’t. I work at people’s houses when they are not home but I’m asked to go there.
Q     That’s when you’re invited in for a job. It’s very different from this situation.
A     In my opinion, I believe half of that house is mine.
QYou’d also concede, wouldn’t you, that you can’t break into someone’s house just because morally you think it’s yours.
A     Well, I believe I had the right to do it.
Q     But that wasn’t right, was it.
AWell, obviously in law, it’s not right but I believed that I had that right. It’s been explained to me several times that I did not in law have that right but morally it does not come into it but I believed at the time, I had the moral right to enter because I believed it was my premises.
In the course of closing addresses I raised with counsel the fact that no evidence had been put before me as to when, if ever, the accused had received legal advice from Mr Oliver Koehn on the question of the accused’s right to enter the premises. Counsel agreed to provide me with a set of written agreed facts on the topic. By e-mail dated 29 April 2005, I was advised that counsel had agreed that “the accused first saw Oliver Koehn, of the Legal Services Commission for legal advice on 9 June 2004” i.e. eight days after the date of the alleged offences.
Mrs Van Den Heuvel arrives home
The accused said that he was looking through the photograph albums when he heard his wife and son coming up the driveway. He then left the bedroom and went to the back of the house and saw Theo and his wife outside. They walked up to the garden table where the three knives were located. The accused said:
…I hid for a second. I thought they were coming in. I knew everything was finished. My son shouldn’t be involved in this. I didn’t really want him to come to court. I went there and they must have seen the broken window…They went back through the roller door [located in the driveway] so I ran out through the broken window and behind the bushes, and hoped to have enough time to get over the fence and go.
The accused said that after he got out of the window he picked up his blazer and the three knives that he had left on the garden table. When he got behind the bushes he put on his blazer, placed two of the knives in the pockets of his blazer and held the other knife in his right hand behind his back. The accused said that before he had time to get over the back fence Theo found him and told him to come out from behind the bushes.
The incident in the backyard
The accused said that when he stepped out from the garden he was holding the knife in his right hand in front of his body at about waist level. He said that he might have waved the knife from side to side several times but denied lunging at Theo or Mrs Van Den Heuvel. He also denied chasing her with the knife. He insisted that he did not intend to harm them and also suggested that he did not intend to intimidate them.
The accused said when he emerged from the bushes holding the knife in front of him that Theo grabbed his right arm, turned him around and threw him onto the ground. He claimed that while he was being held down Theo accused him of being drunk. Neither Mrs Van Den Heuvel nor Theo could remember such a remark having been made. The accused admitted that whilst he was on the ground he abused his wife and believes that he called her a “fucking slut”.
In cross-examination the following exchanges took place in relation to the accused’s reasons for producing the knife:
QYou did more than bring the knife around your back, you went to move it at both of them, didn’t you.
A     That’s what they say. I didn’t agree with that.
Q     You were a lot closer together, probably two or three feet apart.
AI reckon I would never have got closer than a metre, that’s, as you say, three foot apart. I don’t think I got closer until Theo grabbed me.
Later:
Q     You wanted to stab at Margaret, didn’t you.
AI didn’t want to stab at anybody. I knew that my intention to get the money was out. Finished. I didn’t know what I was going to do then.
Q     You wanted to harm Margaret, didn’t you.
AOnly in one way, financially. That’s the only way I wanted to hurt her and I still want to do it now.
Q     Why use a knife to do that.
AIntimidate, frighten, whatever the word you can use. I don’t know what they all are.
Later still:
QI’m saying that after you had a go at Margaret, you then had a swing with the knife at your son Theo, didn’t you.
ANo, I did not. Not a swing. I moved the knife from left to right (INDICATES). I never lunged. I never chased her, I never touched her.
Q     Why did you move the knife from left to right.
A     Because there was two of them.
Q     You wanted to threaten both.
ANo, not threaten, I don’t know what was going on. I was hoping they would run; that I could have run the other way.
HIS HONOUR
Q     Were you moving the knife from side to side to warn them to stay away.
A     That was never said at all.
QNo. Were you moving the knife from side to side to warn them to stay away.
A     Yes, that they wouldn’t grab me. My son anyway.
The police interviews
The accused agreed that he told the police, on more than one occasion, that he went to the house with the intention of killing his wife. In examination in chief he offered the following explanation for those statements:
Once I had been interviewed and once I got arrested, I thought ‘ I’m going to go to gaol for some crime, for something . I’ve done something wrong. I have no dispute about that, but I got very upset. As I said , I don’t think I was totally drunk but I had probably six or eight drinks and then when all this happened, I got very emotional. What was said and I still believe what I meant to say is ‘I’m going to get it ‘and I still meant to get it financially. I expected to get it financially. I expected to get most of the money back to me.
Law relating to charged offences
I turn to the elements of the offences and remind myself that the prosecution must prove each element of the charged offences beyond reasonable doubt.
In the first count the accused is charged with aggravated serious criminal trespass. The elements of this offence are as follows:
·    The accused entered or remained in a place of residence. (In the present case the particulars of count one allege only an act of entering a place of residence).
·    The accused entered without the consent of the occupier and so as a trespasser.
·    The accused knew he was a trespasser or was recklessly indifferent as to whether he was a trespasser (The Queen v Bennett & Ors (2004) 88 SASR 6) and did not enter in assertion of an honest claim of right to do so: Barker v The Queen (1983) 153 CLR 338 at 366 per Brennan and Deane JJ.
·    The accused intended to commit an offence against the person at the time of committing the trespass.
· The accused had an offensive weapon in his possession when he committed the trespass. (The definition of offensive weapon contained in s5 of the Criminal Law Consolidation Act clearly embraces knives).
In relation to claim of right, the authorities establish that an accused person’s claim of right must be based on a belief of a legal entitlement to property in the possession of another and not simply a moral entitlement to such property: Harris v Harrison (1963) Crim LR 497. The claim must be honestly held but the belief does not have to be well founded in fact or law. It need not be a reasonable belief: Walden v Hensler (1987) 163 CLR 561 AT 592 –593 per Dawson J; The Queen v Lopatta (1983) 35 SASR 101 at 107 : The Queen v Langham (1984) 36 SASR 48 at 52-53. Where a defence of honest claim of right has been raised it is for the prosecution to prove beyond reasonable doubt that the accused did not exercise an honest claim of right: The Queen v Lopatta (above) at 108. The defence is confined to a state of mind which excludes any belief that there is a genuine dispute about, or a reasonably available defence to, the accused’s claim: The Queen v Kastratovic (1985) 42 SASR 59 at 85.
In the second count the accused is charged with a common assault on Theo. A common assault is any act by which a person intentionally or recklessly causes another to apprehend immediate and unlawful violence: Rosza v Samuels [1969] SASR 205; McPherson v Beath (1975) 12 SASR174. The elements of the offence are as follows:
·    The accused voluntarily performed an act.
·    The act caused the victim to apprehend immediate and unlawful violence.
·    The accused intended that the victim would apprehend immediate and unlawful violence or acted recklessly in that regard.
·    The act was unlawful.
In relation to the third count the accused is charged with attempting to wound Mrs Van Den Heuvel with intent to cause her grievous bodily harm. This offence consists of the following elements:
·The accused voluntarily performed an act.
·The act amounted to an attempt to wound the victim. To constitute an attempt, what is done must go beyond mere preparation to commit the crime and must amount really to the beginning of the commission of the crime. The accused must actually have embarked on the commission of the crime. It must be part of a series of acts which would culminate in the commission of the crime if they were not interrupted: R v Collingridge (1976) 16 SASR 117. It must be an act immediately connected with the commission of the offence: R v Borinelli [1962] SASR 214 at 218.
·The act was performed by the accused with the intention of causing the victim grievous bodily harm i.e. really serious bodily injury.
·The act was unlawful.
Findings on credibility
I accept the credibility of all of the prosecution witnesses. I found all of them to be honest, forthright and direct. I did not detect any embellishment or exaggeration on the part of any of the prosecution witnesses. I also accept the general reliability of their evidence with certain exceptions that I discuss in my findings. On the other hand I found the accused to be an unsatisfactory and unreliable witness in many respects. In particular, his reasons for attending and entering the house at 12 Mavros Road, his description of the incident in the backyard and his explanation for the statements he made to the police lacked cogency. His demeanour as a witness was also poor. When pressed in cross-examination on important topics he was vague and unconvincing. However, I have borne in mind the dangers inherent in drawing conclusions from observations of demeanour: State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (In Liq) (1999) 73 ALJR 306. In short, I found the accused to be an untrustworthy witness.
Factual findings

I turn to my findings of fact.
Relationship Evidence
An appropriate starting point is the nature of the relationship that existed between the accused and his wife prior to the alleged offences.
It is not in dispute that the accused wrote the letters (exhibit P4, P5 and P6) and the book (exhibit P20). I am also satisfied beyond reasonable doubt that the accused made the threatening phone call in late 2003, as alleged by Mrs Van Den Heuvel. I infer from these writings and the telephone call that the accused had entertained thoughts of killing or harming his wife, Mr Neef and himself. However, I am not prepared to infer that the accused had necessarily resolved to act on those thoughts at the time. It must be remembered that the accused had ample opportunity to act on the threats when they were made but never did. Nonetheless, the threats, together with the accused’s statements to police and his evidence at trial make it perfectly clear that he bore a longstanding and deep-seated animosity towards his wife and Mr Neef for the reasons contended for by the prosecution.
Furthermore, I am satisfied beyond reasonable doubt that in the months following the sale of the shack at Murray Bridge in 2003, the accused’s financial situation deteriorated due to his conduct in gambling away the proceeds of the sale. In the result his despondency concerning his financial situation and his animosity towards his wife deepened. Those feelings were further exacerbated by the poignancy of his fortieth wedding anniversary in late May 2004. As the accused admitted in cross-examination for “the whole week he wasn’t very good at work” and “the boys and the bosses knew something was going on.”
First Count
I turn to the issues relating to the charge of aggravated serious criminal trespass. There is no dispute that the accused entered his wife’s home on 1 June 2004.The contentious issues relate to the accused’s reasons for entering the house and whether he was in possession of an offensive weapon at the time of entry.
The accused asserted that he went there to obtain a cheque in settlement of the property dispute. The knives were taken in case it was necessary to intimidate Mrs Van Den Heuvel and Mr Neef into giving him a cheque. Entering the house for the purpose of frightening the occupants with knives would not (absent claim of right) constitute a defence to count one. Such behaviour would involve entering a place of residence with an intention to commit an offence against the person i.e. common assault. To my mind it makes no difference if the assault was contingent upon a refusal by the occupants to willingly hand over a cheque.
The accused, however, claimed that he had a right to enter the house because he believed that it had been purchased partly with his share of the proceeds of the sale of the matrimonial home. He also suggested that he was entitled to some of the chattels inside the house though he denied that he would have removed those chattels without permission from his wife and Mr Neef.
Mr Stokes argued that it is reasonably possible the accused entered the house in assertion of an honest claim of right. I reject that argument. In my opinion, the accused’s evidence never rose above a claim that he had a moral right to be on the premises. I accept that on 9 June 2004 the accused received legal advice from Mr Koehn of the Legal Services Commission and it may be the case, as the accused asserted, that he was informed by Mr Koehn that he never had a legal right to enter the house. But no evidence was adduced by the defence to the effect that the accused honestly believed that he had a legal claim of right when he entered the house. On the contrary, he said that “ [he] believed at the time, [he] had the moral right to enter”. In my opinion the accused failed to establish an evidential foundation for the defence of claim of right
Even if the accused’s evidence could be interpreted as a claim that he had a legal right to enter, I am satisfied beyond reasonable doubt that the accused, in fact, knew full well that he had no such right. An assertion of honest claim of right is difficult to reconcile with the accused’s admission that he knew that it was wrong to break the window for the purpose of gaining entry and that he would not have removed any of the items from the house without permission. Furthermore the accused could not fail to have appreciated that there was genuine dispute about his claim. His wife had never responded to any of his demands for a greater share of the matrimonial assets.
I am satisfied beyond reasonable doubt that the accused attended and entered the house for the purpose of assaulting Mrs Van Den Heuvel and Mr Neef with the knives and inflicting physical harm upon them. Indeed, it is likely that he had resolved to assault them by the evening of 31 May 2004. Hence his remarks to his brother on the telephone that night: “you will see what happens tomorrow”. I am satisfied that when he discovered that his wife and Mr Neef were not at home on 1 June 2004 he entered the house with the intention of assaulting them upon their return home.
These findings accord with his statements to police in which he consistently asserted that he wanted to kill or seriously harm his wife and her partner. Those statements did not contain a hint of a suggestion that the accused broke into the house for the reasons he advanced at trial.
I reject his testimony that he failed to give the police a truthful and accurate account because he was intoxicated and emotionally upset at the time. I am satisfied beyond reasonable doubt that the accused was not significantly affected by alcohol, if he was affected at all. Indeed the accused himself denied that he was drunk.
The only evidence which points to the possibility of the accused being under the influence of alcohol is Constable Platt’s entry in the prisoner screening form that the accused was mildly intoxicated. However, the police officer had no independent recollection of the accused’s condition at the time he gave evidence. It seems to me that the entry may have been based on no more than Constable Platt’s belief that the accused had engaged in irrational behaviour rather than upon factors necessarily indicative of intoxication. If the accused was significantly intoxicated it is surprising that Mrs Van Den Heuvel, Theo and Constable Keenan did not detect any relevant symptoms.
Moreover, I closely watched and listened to the taped interviews. In my opinion, the accused did not display any obvious signs of intoxication. His speech was not slurred. His answers were clear, coherent and appropriate responses having regard to the nature of questions put to him. Mr Stokes, counsel for the accused, pointed out that in the course of the video-taped interviews the accused tended to wave his arms about when answering questions. He argued that this behaviour served to indicate that the accused was under the influence of alcohol. I disagree. The simple explanation for these mannerisms is that the accused expresses himself in a demonstrative way. Indeed, the accused displayed precisely the same mannerisms when he gave evidence. Mr Stokes conceded that there were no other aspects of the accused’s behaviour in the course of the video-taped interviews that indicated that the accused was intoxicated at the time.
Furthermore, I do not believe the accused’s claim that he drank about four stubbies of beer and three or four ports at the Rose and Crown Hotel before he went to his wife’s home. The accused never mentioned to police that he went to the Rose and Crown. But more importantly, he said that he had consumed only a couple of beers that day. That statement is consistent with Mr Plummer seeing a couple of beer bottles in the accused’s lounge room when he went to the accused’s home at about 10.30am that day.
I reject the accused’s claim that he lied to police about the amount of alcohol he had consumed because he was worried that the police might arrest him for being drunk. It is implausible that the accused would have lied about such a minor matter when he was prepared to admit that he committed a serious offence that involved breaking into his wife’s home with intent to kill or seriously injure.
Regardless of whether the accused drank at his home or at the hotel, I find that he had no more than a couple of beers that day. I am satisfied beyond reasonable doubt that the alcohol consumed by the accused did not affect his ability to give an accurate and reliable account to the police. Furthermore, while I accept that the accused was upset when questioned by police, I do not believe that his emotional state prevented him from giving a reliable account of his acts and intentions. I am satisfied beyond reasonable doubt that he told the police the truth. I find that he went to his wife’s home and entered it with the intention of inflicting violence on his wife and Mr Neef. I find that at the very least he intended to seriously wound them.
This brings me to the question of whether the accused entered the house whilst in possession of a knife or knives. I reject his claim that he left the three knives on the garden table outside the house and his jacket on the ground nearby. The claim is inconsistent with the accused’s own reasons for attending the house i.e. to persuade his wife, at knifepoint if necessary, to give him a cheque. More significantly, this claim (which was first raised in the accused’s evidence in chief) is difficult to reconcile with the evidence of Mrs Van Den Heuvel and Theo. Neither of them noticed the knives and the blazer the accused claims to have left outside. When Mrs Van Den Heuvel and Theo initially entered the backyard they paid close attention to the area where the accused claims to have left these items. They noticed, close-up, that broken glass from the kitchen/dining room window had been stacked against the wall behind the garden table. They could not have failed to see three large kitchen knives sitting on that table and a blazer lying on the ground nearby if they were there. Furthermore, the accused never told the police that he left those items outside. On the contrary, the answers he gave, in the course of the video-taped interview at the police station, suggest that the knives were in his possession inside the house (see [59-60]).
In summary, I am satisfied beyond reasonable doubt that the accused entered the home of Mr Neef and Ms Van Den Heuvel through the rear window without their consent, that he did not enter in assertion of an honest claim of right, that he knew that he was a trespasser, that he intended to commit offences against the person i.e. assaults on Mr and Ms Van Den Heuval and Mr Neef, and that he had offensive weapons when he went inside the house. In reaching that conclusion I have taken into account the issue of intoxication. I am satisfied beyond reasonable doubt that any alcohol the accused had consumed that day did not negate the requisite mens rea for this offence.
Accordingly, I find the accused guilty of count one.
Second count
At the outset, it is necessary to identify the act allegedly performed by the accused that the prosecution relies upon as the basis of the charge of common assault. In opening the case for the prosecution, Ms Trengove said:
In relation to the prosecution case with respect to Theo, the prosecution case is either formulated upon that he either intended to lunge at Theo or at the very least, intended to scare him to get Theo away so that he could pursue his mother, so the prosecution case is either a formalised intent against his son or at the very least, an intended act to frighten off his son so that he could get to his mother, so at the very least, there is a recklessness there on the prosecution case.
These remarks were ambiguous in that the alleged “lunge at Theo” could have related to Ms Van Den Heuvel’s account that the accused made a stabbing motion towards Theo after he stepped out from behind the bushes (see [36]) or Theo’s evidence that the knife was swung in his direction after he grabbed the accused (see [39]). The position, however, was clarified by Ms Trengove in her closing address in which she made it plain that the charge was based on Theo’s description of the knife incident.
Before I turn to the allegation upon which count two is based it is appropriate to deal first with Mrs Van Den Heuvel’s evidence that the accused lunged or made a stabbing motion at Theo for it suggests that the accused possessed a hostile intent towards his son which would be relevant to an evaluation of the prosecutions case that he assaulted Theo.
I am not satisfied that the accused made a stabbing motion towards his son as described by Mrs Van Den Heuvel. Indeed, I am satisfied beyond reasonable doubt that due to fear, the quickness with which the incident occurred and Mrs Van Den Heuvel’s position at the time (slightly behind and to the right side of Theo) that she mistakenly believed that the lunge was directed at Theo when in fact it was aimed at her.
In relation to the incident upon which count two is based, I am not satisfied beyond reasonable doubt that the accused voluntarily swung the knife in Theo’s direction after Theo had grabbed him. Although I am satisfied that Theo gave an honest and reliable account of what occurred, his testimony is not inconsistent with an involuntary moment of the knife in his direction during the brief struggle that took place before Theo succeeded in throwing the accused onto the ground.
In particular, I have regard to the following passages:
1.    Q.     What happened next.
A.    Just sort of lunged towards mum, and then – just trying to think – sort of tried to get his arm away from mum and sort of grabbed him and moved him and he sort of swung towards me. And then in the end just sort of got a hold and grabbed him and just sort of struggled for a bit and then ended up having him on the floor.
....
2.    Q.     You said after you first had him by the right wrist –
A.     Yes.
Q.     - you said he swung at you. What do you mean by that.
A.Just sort of moved the knife around. As I tried to grab his arm, he swung it.
....
3.Q.     When your father swung at you with that motion you’ve described, how far away was he from you at that stage.
A.     About a foot, a bit more than a foot.
Q.When he swung the knife at you like that, where was he looking. Did you see his face.
A.     No, I was concentrating on his arm, yes.
Indeed Theo effectively conceded in cross-examination that his father may not have deliberately swung the knife in his direction:
Q.You’ve said – and, again, correct me if I’ve not noted this properly – that the knife swung towards you, is that right.
A.Yes.
Q.I need to be careful with the language I use here. Can I put this to you. You don’t know, when that happened –
A.Yes.
Q.- whether this was because of the struggle between your dad and yourself over the knife, or whether your father was actually trying to swing the knife at you deliberately.
A.When I first tried to grab the forearm, it was like coming around, sort of, yes, towards me. So it could have been as you said.
I have no doubt that the accused did not entertain any hostile feelings towards his son at the time. To my mind the accused undoubtedly had a deep affection for Theo. He made that plain when he wrote in his book (exhibit P20):
To this day I do not know if [Theo] is mine but I love him and that’s what counts.
I believe that it was the accused’s affection for Theo and a desire to avoid involving his son in a confrontation with his wife that induced the accused to run from the house and hide in the garden.
I find the accused not guilty of count 2.
Third count
I turn to the allegation that the accused attempted to wound his wife with the intention of causing her grievous bodily harm.
Although I believe that the accused initially ran away to avoid a confrontation with his wife in his son’s presence, I have no doubt that after being asked by Theo to come out from behind the bushes and upon seeing his wife standing only a short distance in front of him, the accused’s animosity towards his wife overwhelmed him. I am satisfied beyond reasonable doubt that the accused quickly brought the knife out from behind his back and lunged at Mrs Van Den Heuvel as Theo described. It was a lunge, which as I have said, was misinterpreted by Mrs Van Den Heuvel as an attack on her son.
There is a variation in the prosecution evidence as to the events which followed. Theo said that when the accused lunged forward his mother pushed or attempted to push the knife away. According to Theo his mother was more or less facing the accused at the time. He then intervened by grabbing the accused’s arm. A struggle then ensued and he forced his father onto the ground. On the other hand Mrs Van Den Heuvel said that she had turned to run away, and had taken “two or three or maybe four footsteps” when the saw the knife close to her waist and pushed it away with her hand. She then realised that she was not being chased, turned around and saw Theo struggling with the accused.
In my view Theo might be mistaken on this point and that his mother had in fact turned to run away. But this is not a point of great significance. The common thread running through their evidence is that the accused moved towards Mrs Van Den Heuvel with the knife, that the knife got close to the general area of Mrs Van Den Heuvel’s waist before Theo intervened. I am satisfied beyond reasonable doubt that the accused lunged at his wife and attempted to stab her in the area of her waist.
I am also satisfied beyond reasonable doubt that the accused deliberately performed this act with the intention of causing Mrs Van Den Heuvel grievous bodily harm having regard to the fact that he hated his wife, that he went to the house with the intention of causing her at least grievous bodily harm (as he told the police) and that he attempted to stab her in a vital part of her body with a long bladed kitchen knife. I have no doubt that he would have stabbed his wife with that intention but for Theo’s intervention.
In summary, I am satisfied beyond reasonable doubt that the accused unlawfully attempted to stab his wife, with the intention of causing her grievous bodily harm. In reaching that conclusion, I have not overlooked the issue of intoxication. I am satisfied beyond reasonable doubt that any alcohol the accused consumed that day did not impair his capacity to form the requisite mens rea.
Accordingly I find the accused guilty of count 3.