The WA Court of Appeal is deliberating whether to overturn Lenard’s Chicken tycoon Gerardus Gerrit Heijne’s murder conviction for the death of his 25-year business and life partner.
Frank Cianciosi, 51, died after a fight with Heijne, 45, inside their shared East Perth penthouse apartment in January 2008.
In June last year a Supreme Court jury found Heijne guilty of murder but stopped short of convicting him of wilful murder.
Justice John McKechnie sentenced him to 13 and a half years in prison.
Last month, Heijne faced Chief Justice Wayne Martin, Justice Neville Owen and Justice Michael Buss to get his conviction quashed for retrial.
In court, Heijne’s defence attorney David Gray argued that Justice McKechnie failed to clearly direct the jury on evidence presented by pathologist Judith McCreath.
Dr McCreath could not rule out that a heart attack may have resulted in Mr Cianciosi’s death, nor determine how much pressure was needed to fracture his Adam’s apple, Mr Gray said.
He argued that without having a clear cause of death, the prosecution was unable to prove that Heijne intended to kill his partner and instead relied on the damage to Mr Cianciosi’s throat to show that, through grievous bodily harm, he did in fact commit murder.
‘Nowhere does his Honour link arguments that support the lack of intent to cause grievous bodily harm to the facts of the case,’ Mr Gray said.
Chief Justice Martin countered that it was unrealistic and unnecessary for a judge to spell out to the jury that ‘A + B = C’.
‘Why does he have to assume they are that stupid?’ Chief Justice Martin queried.
Mr Gray responded: ‘The whole case was run on the intention to kill. Most of the evidence of the trial went to the motive and that the appellant had an obsession with Mr X and would even kill to be with Mr X.’
Mr X, whose name has been suppressed for legal reasons, was Heijne’s 19-year-old lover, who Heijne had been seeing at the time of Mr Cianciosi’s death.
Mr Gray argued there had to be something for the jury ‘to pin their hat on’ as the cause of death and the intention behind it.
Justice Michael Buss suggested that the jury may have concluded that Heijne’s frustration had built up due to his lover being a sexual ‘tease’ and could have resulted in him strangling Mr Cianciosi, without the premeditated intention of killing him.
The Court of Appeal justices will deliberate over the matter for anywhere up to three months before delivering their verdict.
Aja Styles
