Van Beelen v The Queen - [2017] HCATrans 135

[2017] HCATrans 135

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 WEDNESDAY, 21 JUNE 2017, AT 2.16 PM

MR K.V. BORICK, QC: If the Court pleases, I appear with MS F.R. GERRY, QC and MR A.J. REDFORD for the appellant. (instructed by Michael Hegarty & Associates)

MR A.P. KIMBER, SC: If the Court pleases, I appear with MS F.J. McDONALD for the respondent. (instructed by Director of Public Prosecutions (SA))

BELL J: Yes, Mr Borick.

MR BORICK: Your Honour, I will be basically short in my address to the Court and I will be followed by Ms Gerry who will deal with some of what I will call the jurisdictional issues and deal with the issues of the meaning of “compelling”, the meaning of “significant” and “substantive”. I will be basically in my submission relying very much on our submission which was filed on 17 March which sets out our position and I want to take the Court to various aspects of that.

In that document at paragraph 6 we state that the Van Beelen Case at the second trial was presented to the jury as a contested question of expert opinion or facts relating to those opinions. It is clear that subsequent to all of the trial and appellate proceedings scientific researches demonstrated that the opinion of the pathologist, Dr Manock, should never have been proffered as expert evidence. Based on the evidence of Professor Michael Horowitz, Dr Manock’s evidence as to time of death had no basis at all in science at that time and had no scientific validity. It is submitted that this Court should hold that this case should never have been presented to the jury as a contested question of expert opinions. There never should have been any such contest and in those circumstances a miscarriage of justice has occurred.

Now, in the course of the application for special leave, Mr Kimber, senior counsel for the respondent, made a number of submissions which we have referred to in our outline. Mr Kimber first of all made the point that the case requires a detailed analysis of how the case was run. We accept that and I am going to take you briefly to our analysis of how this case was run. Then Mr Kimber said one needs to look at what the context of this trial was because what this evidence does in the view of the majority in the court below on the whole of the evidence is only to extend the time of death beyond that estimated by Dr Manock by some 10 to 20 minutes. It was then put to him by Justice Nettle:

But does it not admit of a reasonable possibility…

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.

Keep reading for free

Create a free CaseChat account to read Van Beelen v The Queen and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] HCATrans 135
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