Behrends v The Queen [2004] HCATrans 54 (12 March 2004)

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Behrends v The Queen [2004] HCATrans 54 (12 March 2004)

Last Updated: 19 March 2004

[2004] HCATrans 054

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B63 of 2002

B e t w e e n -

HARRY BEHRENDS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH ACJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 12 MARCH 2004, AT 10.30 AM

Copyright in the High Court of Australia

MR H. BEHRENDS appeared in person.

MRS L.J. CLARE: If the Court pleases, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

McHUGH ACJ: Yes, Mr Behrends, proceed with your argument.

MR BEHRENDS: Your Honour, may I start with my exhibit 168 of the supplementary application book I have filed in the Court. I wish to mention that this matter, my matter here before you, is a matter of the law of evidence. A certain matter of evidence was presented in my trial in such a way that the jury was not aware of certain other matters regarding certain facts. As a consequence of that the jury could not function in a proper way when it came to this verdict. There also was certain evidence not produced at the trial because it was not available.

McHUGH ACJ: Well, Mr Behrends, what you have to show is an error on the part of the Court of Appeal. It is not sufficient to say that there was evidence that should have been presented. We do not admit fresh evidence in this Court; we conduct the case on the evidence that was before the Court of Appeal. So you have to demonstrate some error in the Court of Appeal’s reasons which would justify this Court granting special leave to appeal.

MR BEHRENDS: Your Honour, I have to go back to my summary of arguments and I will turn to page 4. That is exhibit 49 of the application book. In section (a) I have written all my arguments and reasons with regard to the judgment of the Court of Appeal. One of the important things which I have not specifically written here about it, but, for that reason, I want to make some oral statements, because in the Court of Appeal I filed certain matters which a court – applications to file or adduce further evidence. These applications were filed in the appeals court and during the hearing it was not allowed as evidence. That is one of my complaints against the judgment. If you give me leave, I will refer to the evidence - - -

McHUGH ACJ: Mr Behrends, I appreciate you have a number of complaints, but you have to show that there is something special about your case. We can only hear 60 or 70 cases a year, and there are tens of thousands of cases decided in the country every year. You have to show some special reason, some point of general legal importance, or that the Court of Appeal or the jury’s verdict constitutes a miscarriage of justice, that would justify a grant of leave. Now, in your arguments, you will have to direct your mind to that sort of problem.

MR BEHRENDS: Yes, if I can come to the jury, your Honour, there were 13 matters the jury was not directed in the right way - - -

McHUGH ACJ: But no point was taken. You were represented by counsel and no objection was taken to any of these matters that you now complain of.

MR BEHRENDS: Yes, because nobody could have objected to that matter at that time, because simply certain evidence was not available. It was discovered after the trial. I made, for that reason, application to the Court of Appeal to adduce that evidence so it can be heard in the court, and the three appeal court judges rejected the application on the ground that it would maybe not help me. That is my point, and I disagree with that.

McHUGH ACJ: Well, the reason they probably rejected it was that it was evidence that was available at the time of your trial and should have been dealt with then.

MR BEHRENDS: Yes, your Honour, that may be so the case, but certain evidence was simply not available. For example, the charge sheet to the Magistrates Court was not available where the police merely state that they found the matches at me. There was not another document available at the District Court hearing, where Detective Lacey states that the matches were found at me. That was found after the District Court trial and I would like to know, if the jury had known about these two documents, whether there had been coming up a thought in their mind in this regard to certain matters, especially police evidence, what was presented to them.

They had not had any chance to see those two documents. I had not had any chance to see them. My defence counsel had not had any chance. I saw them after the trial. Why? Because I applied to the Police Service for certain records and documents, and when I looked through the documents I found this material. As I said, it is absolutely contradictory to what the police stated in the court and what they stated in their statements, because on one side they say they found it on the window sill – there is a picture of what is declared as the place where the matches actually were found – it is just a bench supported by two chairs. So we have here four or five versions of where the matches were found.

There were certainly other matters in the case with regard to the matches. These matches were found at 8 o’clock, for example. According to what the police said and what was before the appeal court judges in the court, the police found me at 4.30 in the afternoon in the end of the hallway, and they state in arm’s reach they found the matches later on in darkness at 8 o’clock. They did not find them at 4.30 in arm’s reach. They did not say, “Look, Mr Behrends, here are the matches. Come, admit it. We found them within arm’s reach on the window sill”. They did not say that at 4.30. No, they came back at 8 o’clock in darkness and surprisingly the matches
are on the bench there. That never, ever was pointed out by my defence counsel to the jury, it was not directed by the judge to the jury, and I do not know how the jury could function in that whole case.

I have cases here, the Rivkin Case, where it was clearly stated and judged that the jury could not function because the evidence was not presented in the right way and in a proper way. That is an example of what can happen. It happened in my case and, for that reason, I am standing here to defend my rights that I have not had a proper case, I have not had a fair trial, and if I am not succeeding here in this case today and get a fair chance, I will take the matter further on. That is all that I have to say at present.

McHUGH ACJ: Yes, thank you. We need not hear you, Mrs Clare.

In our view, the case raises no issue that would warrant this Court granting special leave to appeal. Accordingly, the application is dismissed.

AT 10.40 AM THE MATTER WAS CONCLUDED