Bennett & Anor v Facer

[2003] HCATrans 610

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B86 of 2001

B e t w e e n -

GEORGE EDWARD BENNETT

First Applicant

LINDSAY JAMES BENNETT

Second Applicant

and

BARRY PAUL FACER

Respondent

Application for special leave to appeal

McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 14 MARCH 2003, AT 12.17 PM

Copyright in the High Court of Australia

MR G.E. BENNETT appeared in person.

MR L.J. BENNETT appeared in person.

McHUGH J:   Now, we have read your submissions and in your application you say you “want to be present to speak on any subjects the judges may want to query or have further information to ask us” about.  Well, we have read your material and we have no questions.  Is there anything further you want to say about the matter?

MR L.J. BENNETT:   Yes, your Honour.  I wrote out a bit of a list, sort of thing, so I just want to start at the start.  Your Honour, this may seem unusual, but I have been wrongfully accused.  I did not do grievously bodily harm to Barry Paul Facer, Jack Bennett did.

McHUGH J:   Well, what you have to understand is the very limited role we have.  The jury has convicted you and so far as we are concerned, that is taken as established.  You have to show some error on the part of the trial judge or the Court of Criminal Appeal before we can interfere.

MR L.J. BENNETT:   Yes, I sent down an affidavit that your Honours should have got for an authority from Jack Bennett.

McHUGH J:   That is another problem, that the Court does not entertain what is called fresh evidence or evidence on a special leave application or on an appeal.  We have to be guided what the evidence was at the trial.  Your complaint seems to be that you did not give evidence.

MR L.J. BENNETT:   No, I was not allowed in the witness box, your Honour.

McHUGH J:   That was a choice that was made on the advice of your counsel ‑ ‑ ‑

MR L.J. BENNETT:   No, it was not; I was told I have to keep out of the witness box regardless.

McHUGH J:   You obviously accepted that advice.

MR L.J. BENNETT:   No, your Honour, I did not have a chance to say yes or no, because Judge Noud told me to stand up, he said that counsel would talk to me and then to sit down.  I could not say yes or no because the counsel was going to talk.  See, what I respectfully ask you to do is to change the system of the criminal procedure, where ‑ ‑ ‑

McHUGH J:   We cannot.  You see ‑ ‑ ‑

MR L.J. BENNETT:    ‑ ‑ ‑a person – sorry to interrupt your Honour – must go into the witness box and personally say whether he wants to give evidence or not.  That way there can be no interference.

McHUGH J:   You see, your submissions misunderstand what our function is.  You seem to think that we are like Parliament.  We cannot change the law in the way that you want to do; order people to go into witness boxes and give evidence.  It is a fundamental rule of the legal system in this country that an accused person cannot be required to give evidence unless that person wants to.

MR L.J. BENNETT:   Well, I did want to; that is the whole thing.

McHUGH J:   Well, so far as the record goes, you were represented by experienced counsel and he took the view that the best chance you had of being acquitted was for you to stay out of the witness box.

MR L.J. BENNETT:   Yes, your Honour, but the experienced counsel barely said anything in the whole case.  He relied on what the other barrister drew out.  See, we are charged as in concert and Jack Bennett got off, so to speak, and we were blamed for what he done.  I cannot see any justice in it.

McHUGH J:   Yes, carry on.

MR L.J. BENNETT:   See, Dennis Lynch and there is Greg McGuire; they were the two barristers.  Dennis Lynch done the majority of talking in the whole case.  When Greg McGuire came in he said barely anything.  I think we have said it somewhere in the application book, your Honour.  I will draw your attention to the page when I find it.  All our barrister did was ask a few short questions and that was it, so I cannot see how he fairly represented us.  Dennis Lynch done a good job of Jack Bennett all right, but as for Greg McGuire, he did not represent us one bit.  If you go from pages 59 from about 40 down right over the page to 60.  I will read it out:

The law should enact that Counsell representing their client the accused cannot stand up and make the decision for the accused not to give evidence from the witness box.  In that way the public will be safe in the knowledge they are not being ordered around a courtroom full of people all being paid by the Government.  Even the crown witnesses are legally representing the crown and are paid by the State revenue.  The Jury, the Judges, the Legal Aid Counsell and Prosecuting Counsell, the Bailiff.

How can you believe we had a fair trial over a charge of grievous bodily harm when our Legal Aid Counsell did not cross examine the crown witness Dr Manning after the Prosecuting Counsell questioned him from Page 135 to 145.

Page 145:  Mr McGuire to cross examination “I have nothing your Honour”.

That was the only doctor that came into that court case, your Honour, and he was lying, because we have a proven fact from Dr Young’s letter.  He said he never – I will keep going with this.

McHUGH J:   Mr Bennett, the letter is not evidence.  Was the letter at the trial? 

MR L.J. BENNETT:   No.

McHUGH J:   You see, one of the problems you have in this special leave application is that there is not even a transcript of the evidence before this Court.

MR L.J. BENNETT:   So, you mean to say I should have gave you a copy of the literature from the trial?

McHUGH J:   Well, if you were going to make an attack on various rulings at the trial, the evidence may have been relevant, but you are making statements from the Bar table and there does not seem to be evidence at the trial to support them.

MR L.J. BENNETT:   We have Dr Manning’s report, I think, have we not?  I think you do.  I sent this down to you, your Honour, in one of the authorities, that is to say, the transcript of proceedings, Magistrates Court, Muirhead SM.

McHUGH J:   This material was not accepted for filing.

MR L.J. BENNETT:   Why not?

McHUGH J: Because this Court does not accept new evidence. That has been the rule in this Court for a century. Under the Constitution our task is to say whether the judgment of the court below was right on the material before it and that is what we have to decide under the Constitution. That is why for a hundred years the Court has not accepted new evidence in this Court. We affirmed that rule recently in the case of Mr Eastman, who is currently serving a sentence of life for murder.

MR L.J. BENNETT:   So, when you get people who get let out of gaol after six or seven years in light of new evidence, how does that come into the show.

McHUGH J:   It does not come in here; you make an application to the Court of Criminal Appeal of your State.  But in the High Court of Australia we rule on whether the Court of Appeal or the Court of Criminal Appeal were right on the material before them.

MR L.J. BENNETT:   I cannot see how there can be any justice when a person is not allowed to speak, I still fail to see how.

McHUGH J:   You were represented by counsel and the theory of the system is that counsel speaks for you.

MR L.J. BENNETT:   Yes, but they spoke…..and did not ask my, what do you call it, condolences or whatever you would like to call it, but they answered on behalf of me without asking me. I was told that every time you go into a courtroom, if you sort of say anything out of place you will be in contempt. If you are standing up in the dock and you speak out, I would be in contempt of court. See, in actual fact, if all the facts and the matter went through the court case, the original trial, sections 273 of the Criminal Code would have applied to us and 271.  They would have applied just down to a tee, because I never hit the man.  I have been blamed for something I did not do and now this man wants compensation.  I have been to gaol, I have watched my mother cry, I have done every – this has been going on for six years, your Honour.

McHUGH J:   Well, Mr Bennett, you may feel that you have been done an injustice, but this Court has a very limited role in what it can do in respect of matters.  The case has been conducted in a particular way and you are effectively bound by that.  You did not give any evidence at the trial.

MR L.J. BENNETT:   I was not allowed to.

McHUGH J:   You were allowed to, but your counsel told you obviously that you should not give evidence.  He thought it was in your best interest to stay out of the witness box.

MR L.J. BENNETT:   Well, the judge told me to sit down as well.  Even in the compensation hearing the judge told me also to sit down.  That was Judge Noud.  I suppose you might call this new evidence as well, but I faxed it down to you.  I do not know whether it has been filed or not, but it is page 199:

MR J BENNETT:   Your Honour, the – I thought Lindsay was going to give evidence.

HIS HONOUR:   No.  Well he – well the other side don’t want to cross‑examine him.  You see in these proceedings the evidence is given by affidavit and they’ve got their affidavits in.  I made rulings earlier on in the day in relation to affidavits.

Well, I still was not allowed to go into the witness box, your Honour.

McHUGH J:   Yes, were you talking about the application for compensation?

MR L.J. BENNETT:   Yes.

McHUGH J:   But we are concerned here with your application for your conviction, are we not?

MR L.J. BENNETT:   Yes, as I said, for the whole lot, because I did not do any of it.  I have been blamed for something I did not do for six years.  I have been on community service, I have been to gaol, I have been three months on an IRO order.  I have had the dishonour of going up town in my own home town and people not talking to me because they think I am a criminal.  It is not good, it is bad, it is a miscarriage of justice as far as I can see.  I was reading Murphy’s Law.  Murphy has a book out called The Rule of Law.  I was reading that on the way down.  I did give these down as authorities, so I hope you have them there.  Down the bottom of page 3, your Honour:

Accountability is the key idea.  A good democratic judgment will, therefore, take the form of description accompanied by explanation and argument.  The real circumstances and interests of the parties to the case need to be set out in a way that will be clear to the average member of the public.  The real issues –

it says.  Well, the real circumstances in our case is that we have not yet been able to say what happened.  They say the fight started over money; it did not start over that.  The money business had already been settled.  This started outside when that man broke my hand.  He attacked me in the dark and then he went to get a gun out of his car, your Honour.  If it was not for my brother he might have succeeded.

McHUGH J:   Yes, but the jury obviously accepted his version of the case.

MR L.J. BENNETT:   They did not have my version to go off because I was kept out.

McHUGH J:   I understand that, but that was a decision made by your counsel and unfortunately, as it may appear to you, you are stuck with it.

MR L.J. BENNETT:   Well, how can I fix it?

McHUGH J:   There is no way you can fix it at the moment.

MR L.J. BENNETT:   Well, even relying on the affidavits of Jack Bennett saying that he did the grievous bodily harm to Barry Paul Facer, they say he did the whole lot.  What more evidence does a man need?

McHUGH J:   Well, as I have already indicated to you, that is not a matter that we can take any notice of and that is the end of the matter as far as we are concerned.  We cannot rely on an affidavit filed by somebody else who says he is now responsible for what happened.

MR L.J. BENNETT:   I will let my brother speak for a while, your Honour.

McHUGH J:   You are the other Mr Bennett, are you?

MR G.E. BENNETT:   Yes, your Honours, I am George Bennett.

McHUGH J:   Yes.

MR G.E. BENNETT:   If I would be able to speak or what I would like to say, it will not take very long.  What I would like to talk about is, I have been through eight court cases and this is the ninth, and I have never been able to speak or give evidence to say what is right now, that I never hit the man Facer on the head, your Honours.  It was he who assaulted my brother and I came to my brother’s aid and to prevent Facer, the man who he is known as now - I do not even know if his name is Smith – from getting the gun at the door of his car.  It was Jack Bennett who hit the man in the head with the butt of his rifle.  Jack Bennett said so, Facer said so himself, in the first case at Longreach and all the cases that followed, the compensation cases, Facer was saying how he had been struck in the head with the butt of Jack Bennett’s rifle and the Crown’s witnesses also said so and here it is now, I and my brother have been asked for compensation for this man’s injuries that we had no part.  I think there has been a great misunderstanding there.

I have been accused of a crime I did not commit.  As well as that, I have been wrongfully gaoled.  Throughout the whole trial, your Honours, I have only been able to say two words, those being “not guilty”.  I have never been able to give evidence from the witness box.  When asked by the judge and that, as my brother so said, that we were told to stand up and sit down, and that is just in the transcript as a general procedure of the case, and our counsel would answer for us.  It may have been that the reason that our counsel, Greg McGuire, was so confident of winning the case was by relying, as they were, on the Criminal Code 273 and 271 and the jury too simple mind to realise his train of thought.

As well as that, the judge had a time limit on the case.  Now, a time limit, I do not think - well, it is a known fact that regardless, a criminal case, there should be no rush in it and if it takes a week to test the evidence, then so be it.  For this case it was four days that was set out; it took three and into the fourth day, the last day of the case, for the Crown evidence to be heard.  I would just like to make a quick reference to that.  Anyway, that is at page 384 in paragraph 20 of the transcript.

Also, at the end of the trial, the judge said to the jury that evidence was only to be taken notice of from the witness box.  Now, all the way through it has been a one-way street since.  The outcome of that case and those that have followed have depended solely on Facer’s and the Crown’s evidence.  I do not see - this is a no way right fair trial that you could call it.  I refer to Hondros’s Case.  You may have that.  As he says at page 1 paragraph 20:

“(2)  In determining whether or not to make an order pursuant to subsection (1) of this section, the court or judge shall have regard to any behaviour of the other person that contributed, directly or indirectly, to the injury suffered by him, and to such other circumstances as it or he considers relevant –

And that is talking about how this fellow has put in for a claim of compensation, something that we had no part in, and it was he himself who contributed to his own injuries because he was the sole cause of the fight.

Because I and my brother have been…..for it and to be made…..that if the law could be changed, that it be made that you would be asked to give evidence from the witness box and not from the dock, as it were in our case, and there from the witness box say yes or no, “I wish not to give evidence” or “Yes, I do”.  If it had been that way for us it would have been a whole lot different.

Now, just quickly, as we are getting low on time, if you could just take the time to look at our case and see the true light of our innocence.  Now, why did the Criminal Code 271 and 273 not apply to us?  Look, I am asking for my criminal record to be erased because of this.  Our police statements were played before the court only an hour after the incidents and they will be taken as out-of-court evidence since that.  That is what it is.  If

you may be able to look at our case and see the light of how it was.  I will let my brother finish off talking to you, your Honours, but that is what I wanted to say, that I never hit the man, it was Jack Bennett; he has an affidavit to say so.

McHUGH J:   Thank you, Mr Bennett.

MR L.J. BENNETT:   On page 10 of that Lionel Murphy extract that was sent down to you, it says the court must give strong message to ensure the evidence is never weighed against the accused.  Yet, it was four days of Crown evidence in Longreach and only one hour of our defence where Jack Bennett went into the witness box.  The whole lot has been weighed against us from the start.  Even to this day, all the courts have pre-judged us because they have not heard our side of the case.  Over the page it says, Richard Seary must have been a most unreliable witness.  What about Facer, the man we are supposed to have belted up.  Refer to his criminal record.  It is a long criminal record, your Honour.  He has been up for the State, for resist police, state false name and address, two charges, dangerous driving, false pretences as Mark Allan Facer, incite to resist arrest, threatening words as Barry Paul Facer, assault to police on 26 June 1976 as Barry Paul Facer, behave in a disorderly manner, resist police, insulting language as Barry Paul Facer, false pretences as Mark Allan Facer, obscene language, resist police.  This man is a criminal and we have to be burdened by his compensation on top of us.  It also says somewhere in the law that you should not have double jeopardy.  I have been in gaol, now we are getting compensation on top of that as well.  I do not know.  He also got more.  Found in an enclosed yard without lawful excuse, as Barry Paul Facer, behave in disorderly manner, resist police, fail to take proper precautions with firearms.  He also has more, as Mark Allan Facer, obscene language, unlawful assault.

McHUGH J:   Mr Bennett, the time is up for your application, I am afraid.  Thank you.  Could you resume your seat, please? 

On 5 June 1998 the applicants were convicted of causing grievous bodily harm to the respondent to this appeal, Barry Paul Facer, after a trial by jury before Judge Noud.  On 25 November 1998, the judge sentenced the first applicant to imprisonment for two years partially suspended and the second to eight months detention, with the second applicant to be released after serving four months detention.  In February 1999 the Queensland Court of Appeal reduced the sentence in respect of the second applicant.  They directed that no conviction be recorded.

Subsequently, on 5 March 2001 Judge Noud ordered the applicants to pay the respondent $18,750 in respect of his injuries.  In September 2001 the Court of Appeal dismissed an appeal against that order.  The applicants seek leave to appeal against that dismissal.  In part, their written arguments attack the reasoning of the Court of Appeal which led to that order, but those arguments do not establish any prospect of demonstrating error if special leave were granted.  In part, their arguments attack the justice of the jury verdict.  To that extent, their arguments are immaterial to the present application which is concerned with the order for compensation.

The applicants have also sought to tender before this Court a good deal of evidence that was not before the Court of Appeal, but, as was pointed out to them during the discussion, this Court does not hear fresh evidence on an appeal and, as a result, does not hear it in a special leave application.

Accordingly, there are no prospects of an appeal in this matter succeeding and special leave must be refused.

AT 12.44 PM THE MATTER WAS CONCLUDED