Van Den Hoek v The Queen [1986] HCA 76

High Court of Australia Gibbs C.J. Mason, Wilson, Brennan and Deane JJ. Van Den Hoek v The Queen [1986] HCA 76

ORDER Application for special leave to appeal granted. Appeal allowed. Order that the judgment and order of the Court of Criminal Appeal of Western Australia be set aside and the appeal to that Court be allowed. Set aside the conviction and sentence and order a new trial on a charge of murder.

Cur. adv. vult.

The following written judgments were delivered:—

Dec. 2 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.

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.