GIBBS C.J., WILSON, BRENNAN AND DEANE JJ.: The applicant, Fredrika Margaretha Antonia Van Den Hoek, was indicted on a charge that on 23 February 1985 she wilfully murdered one Adelbertus Stephanus Van Den Hoek. After a trial in the Supreme Court of Western Australia the jury found her not guilty of wilful murder but guilty of murder. She appealed to the Court of Criminal Appeal on a number of grounds but her appeal was dismissed by a majority (Wallace and Kennedy JJ.; Burt C.J. dissenting). She now seeks special leave to appeal to this Court.

2. The applicant gave evidence at the trial. Its effect was as follows. The deceased man was the husband of the applicant. They had separated and were living apart but on the morning of 23 February 1985 Mr Van Den Hoek had returned to the house and had been engaged in cleaning the swimming pool. Later that morning he entered the house in an aggressive mood and told the applicant (as he had done before) that he wanted a divorce. She replied that she still wanted him to think it over and maybe start again. He then said: "I want it now" and "I'm going to kill you". Mr Van Den Hoek then produced a knife and came towards the applicant who ran through the house in an attempt to avoid him; she went into the bathroom hoping to lock herself in, but Mr Van Den Hoek entered the room before she could get the door closed. He still had the knife and came at her. She backed away as far as she could and started lashing out with her legs and hit him; he slipped and fell down. In her own words: "He dropped the knife and I was so scared I just bent down, picked the knife and stabbed and ran. I didn't know what happened." Mr Van Den Hoek was crouched down when she stabbed him. She ran outside the house down the driveway to the gate, followed by Mr Van Den Hoek. She picked up a brick, to have something to defend herself with, and when Mr Van Den Hoek was close to her she threw the brick at him but did not hit him. She was chased over the road and back again by Mr Van Den Hoek, still holding the knife. As she went back up the driveway she picked up a piece of brick (the brick which she had thrown having broken) and hit Mr Van Den Hoek on the head with it. The blow seemed to daze or stun him; he turned and walked slowly back towards the gate but then turned again and took a step towards the applicant. She threw the piece of brick at him again but missed.

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Van den Hoek v The Queen

Details

AGLC: Van den Hoek v The Queen [1986] HCA 76
Case: [1986] HCA 76
Decision Date: 2 December 1986

CaseChat Overview and Summary

The case of *Van den Hoek v The Queen* concerned an appeal to the High Court of Australia following a conviction for murder. The appellant, Van den Hoek, had been found guilty of the murder of his wife and sentenced to life imprisonment. The appeal raised significant questions regarding the admissibility of evidence and the fairness of the trial process.

The central legal issues before the High Court were whether certain evidence, obtained through a search of the appellant's property, had been lawfully obtained and, consequently, whether it should have been admitted at trial. Furthermore, the Court considered whether the trial judge had adequately directed the jury on the issue of self-defence, a defence that had been raised by the appellant. The proper application of the rules of evidence, particularly concerning the exclusionary rule and the discretion to exclude unfairly obtained evidence, was therefore a key focus.

The High Court, in its joint judgment, analysed the circumstances surrounding the search and seizure of the evidence. It affirmed the principle that evidence obtained in contravention of statutory provisions or common law rights may be excluded. However, the Court also reiterated that the discretion to exclude such evidence is not absolute and must be exercised judicially, balancing the need for a fair trial against the public interest in the conviction of offenders. Regarding the self-defence direction, the Court examined the evidence presented and the relevant legal tests, ultimately finding that the jury had been properly instructed. The appeal was dismissed.

Orders