Van Beelen v The Queen - [2017] HCATrans 19

[2017] HCATrans 019

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A35 of 2016

B e t w e e n -
FRITS GEORGE VAN BEELEN
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal

KIEFEL CJ
NETTLE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO ADELAIDE

ON FRIDAY, 10 FEBRUARY 2017, AT 10.05 AM

MR K.V. BORICK, QC: If the Court pleases, I appear with MR A.J. REDFORD for the applicant. (instructed by Michael Hegarty & Associates)

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

KIEFEL CJ: Yes, Mr Borick.

MR BORICK: I will be, in the time available, dealing with three issues. First will be the meaning of the expression “interests of justice”; the second will be a summary of Professor Horowitz’s evidence, and the third will be dealing with the competence and credibility of Dr Manock.

Dealing with the issue of the interests of justice, prior to the introduction of section 353A of the Criminal Law Consolidation Act (SA) which is the relevant section, the expression “in the interests of justice” occurs only in two sections of the Act, and in section 285AB and section 359.

There is no judgment or even any discussion that we have found relevant to the meaning of the expression “in the interests of justice” between the introduction of the Criminal Law Consolidation Act in 1935 and 10 February 2017. There is no reference to the meaning of “interests of justice” in the judgment of the court below.

In neither of the two previous cases which have been dealt with under section 353A, that is Keogh and Drummond, is there in our view any specific reference to the meaning of the “interests of justice”. Specific reference is now made to paragraph 129 of the judgment of Lundy. I am just going to read – one brief paragraph I want to read. The court there said:

The essential elements of the defence case on time of death were available to trial counsel. As already observed, they were deployed to some effect in cross examination. But there is now a welter of evidence available from a number of highly reputable consultants which, if accepted, would nullify the claimed scientific support for the time of death which was so central to the Crown case. In these circumstances, the Board is in no doubt that the interests of justice demand the admission of the new evidence on this subject.

So there the court was talking particularly about the nullification, if you like, of the expert evidence presented at the time and referred specifically to the interests of justice in reaching their decision.

KIEFEL CJ: Mr Borick, before you get to the question of interests of justice, do you not have to satisfy the statutory requirement that the evidence can be seen to be both fresh…

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 19
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Van Beelen against his conviction for murder. The appeal concerned the admissibility of evidence obtained through a search of his property, which was conducted pursuant to a warrant issued under the *Criminal Investigation Act 2017* (SA). The central dispute revolved around whether the warrant was validly issued, and consequently, whether the evidence seized was admissible at trial.

The High Court was required to determine whether the issuing officer had reasonable grounds to believe that evidence relating to an indictable offence would be found on the premises to be searched, as required by section 71(1) of the *Criminal Investigation Act 2017* (SA). This involved an examination of the information presented to the issuing officer and whether that information, viewed objectively, supported the belief that the search would yield evidence of a crime. A further issue was whether, if the warrant was invalid, the evidence obtained should have been excluded under section 78 of the Act, which provides for the exclusion of improperly or illegally obtained evidence.

The Court reasoned that the issuing officer's belief must be based on reasonable grounds, meaning that a reasonable person in the position of the issuing officer, having regard to the information before them, would have formed the belief. The Court found that the information provided to the issuing officer was insufficient to establish reasonable grounds for believing that evidence of a crime would be found at Mr Van Beelen's property. Consequently, the warrant was invalidly issued. The Court then considered the admissibility of the evidence under section 78 of the Act, applying the principles that the exclusion of improperly obtained evidence is the default position unless the court is satisfied that the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been improperly obtained.

The High Court allowed the appeal, quashed the conviction, and remitted the matter to the Supreme Court of South Australia for a retrial.

Orders