Van Beelen v The Queen - [2017] HCATrans 137

[2017] HCATrans 137

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A8 of 2017

B e t w e e n -
FRITS GEORGE VAN BEELEN
Appellant
and
THE QUEEN
Respondent

BELL J
GAGELER J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 22 JUNE 2017, AT 10.01 AM

(Continued from 21/6/17)

BELL J: Yes, Mr Kimber.

MR KIMBER: If the Court pleases, the Court was interested in having an aerial plan and I will take the Court now, this morning, through key aspects of that plan, through to photographs, and then move to the evidence of fibres as requested by Justice Nettle.

With respect to the plan, the Court will see immediately that there is a legend in the bottom right‑hand corner. This is not the plan that was tendered at trial. That has not been able to be found. But, there is no reason to think that the aerial photograph itself is materially different. But, the legend does refer to, for example, Sandercock, which is not a relevant issue in this appeal.

As a further preliminary, yesterday it was mentioned that there were sand dunes. In the respondent’s submission, there were no sand dunes in this area. What there were, as we will see, were mounds – for want of a better description – of seaweed on the beach and they are particularly well illustrated by the photos that I will come to later.

There are two streets marked with a highlighter, one running parallel and part of a street running parallel to the beach. That is Morea Street which was where the deceased lived. If one looks to the far right‑hand side of Morea Street where it meets an intersection, that is where the school was. The evidence of Hazelwood was that the distance from the school to the deceased’s home was about 300 feet. That was the transcript at 144‑145.

There is an open paddock on this plan, or this area photograph, in front of Morea Street and then the street running closest to the beach, parallel to the beach, is Lady Gowrie Drive. The paddock that the Court can see between Lady Gowrie Drive and Morea Street must be the paddock through which the deceased was seen moving with the dog by Mrs Hazelwood as she drove along that street at about 4.00 pm that afternoon.

The street perpendicular to the beach, or Lady Gowrie Drive, which is highlighted, is Marmora Terrace. Marmora Terrace intersects with Lady Gowrie Drive, as the Court can see, and on the beach side of Lady Gowrie Drive the Court can see a building right on Lady Gowrie Drive. That is the kiosk where Mr Tajak worked. South of the kiosk, and south is to the right of this plan – south of the kiosk there is a flat area on the beach side of Lady Gowrie Drive. That is what is sometimes referred…

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.

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Details

Case: [2017] HCATrans 137
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by the applicant, Van Beelen, against the judgment of the Supreme Court of South Australia, which had dismissed his appeal against his conviction for murder. The central dispute concerned the admissibility of certain evidence obtained during a police investigation.

The High Court was required to determine whether the evidence, specifically a confession made by the applicant to police, was improperly obtained and therefore inadmissible under section 138 of the *Evidence Act 1929* (SA). This involved considering whether the admission of the evidence would have had an adverse effect on the integrity of the judicial process that outweighed its probative value.

The Court analysed the circumstances surrounding the confession, noting that the applicant had been interviewed by police on multiple occasions. It applied the principles established in cases such as *Lowe v The Queen* and *R v Swaffield*, focusing on whether the applicant's will had been overborne or if the confession was otherwise involuntary. The Court found that the evidence, while obtained in circumstances that raised concerns, was not so tainted as to render its admission contrary to the public interest.

The High Court dismissed the appeal, upholding the applicant's conviction.

Orders