Huxley v The Queen

Huxley v The Queen - [2023] HCA 40 - HCA 2023 case summary — Zoe

[7]

Huxley was one of three co‑accused charged on indictment. Huxley was charged with the murder on 16 August 2015 of McCabe. A second co‑accused, Rewha, was charged with the unlawful assault occasioning bodily harm in company on 15 August 2015 of McCabe. A third co‑accused, Doyle, was charged with being an accessory after the fact to manslaughter of McCabe.
The prosecution alleged that Rewha assaulted McCabe occasioning bodily harm in company on 15 August 2015 in a unit in Burnda Street, Townsville, and that Huxley murdered McCabe on 16 August 2015 at Crystal Creek or elsewhere in Queensland. The evidence of Greer was essential to the conviction of Rewha, as it was the only evidence that McCabe travelled to and was assaulted in the Burnda Street unit on 15 August 2015 and of Rewha's presence at the unit. Greer's evidence was also relevant to the allegation against Huxley, as it included evidence that Huxley was not present in the unit when McCabe was assaulted and as to the severity of the assault. The main prosecution evidence against Huxley was evidence of admissions that Huxley was alleged to have made to another witness, Hess. According to Hess, Huxley told him that he had "done a hit" on McCabe for $10,000 by dropping a large rock on him.
Huxley's defence included that Hess's evidence was unreliable and unbelievable and that the assault on McCabe in the Burnda Street unit, when Huxley was not present, inflicted potentially fatal injuries on McCabe from which he subsequently died. As part of this defence, it was argued for Huxley that Greer's evidence established both Huxley's absence from the Burnda Street unit when the assault occurred and the seriousness of the assault on McCabe in that unit (over and above the effect of the forensic evidence). In Huxley's defence, accordingly, Greer's evidence was said to provide a reasonable doubt about Huxley's guilt, contrary to the challenged evidence of Hess about Huxley's alleged admissions of killing McCabe.
Greer, however, was a reluctant witness. She attended the trial after a warrant requiring her appearance was issued. In front of the jury, she indicated that she was refusing to be sworn or affirmed as a witness to give evidence. In the absence of the jury, she continued to refuse to give evidence as a witness and was charged with contempt of court. The evidence Greer ultimately gave was that on 15 August 2015 she had consumed significant quantities of methylamphetamine and alcohol. When asked about her memory of 15 August 2015, she said that it was "a bit all over the place" and she remembered "small bits and pieces" but was "[n]ot sure what order they kind of go in".
In the absence of the jury, the trial judge and counsel debated the appropriate directions to be given to the jury. As Greer's evidence was the only evidence inculpating Rewha, the trial judge indicated that it was necessary to direct the jury that it had to reject her evidence unless satisfied beyond reasonable doubt that it was accurate and reliable. Huxley's counsel objected on the basis that this would prejudice Huxley as, on the defence case, Greer's evidence exculpated Huxley. The trial judge considered that in a joint trial of Rewha and Huxley the jury could not be given two directions about Greer's evidence, one direction in the case against Rewha, and another, different direction in the case against Huxley. This explains the giving of the impugned direction (discussed below).
Huxley was convicted of McCabe's murder. Rewha was acquitted. Doyle was convicted of being an accessory after the fact to manslaughter.
Huxley appealed. There were five grounds in the appeal to the Court of Appeal of the Supreme Court of Queensland. Relevantly, ground five was to the effect that the trial judge erred in directing the jury that it was open to it to disregard the evidence of Greer, which deprived Huxley of a proper chance of acquittal. The Court of Appeal dismissed the appeal. In its reasons, the Court of Appeal said that the trial judge's directions about Greer's evidence arose from the manner in which Greer gave and the content of her evidence, and that there "was no basis for the trial judge to distinguish those observations, as to whether the jury was considering the case against Mr Rewha or the case against Mr Huxley". The Court of Appeal also reasoned that the "trial judge qualified his comments with the observation that favoured Mr Huxley that, if Ms Greer's evidence was disbelieved, there was no evidence that Mr Huxley was in the unit, and fairly summarised the other evidence about the severity of the assault that was relied on by Mr Huxley". Accordingly, the Court of Appeal concluded that there was no error in the trial judge's directions about Greer's evidence.[1]
As noted, it is not in dispute that the impugned direction was appropriate to be given in the case against Rewha. Nor is it in dispute that if the impugned direction was given as and with the effect for which Huxley contends, that direction would have been wrong in law and would require Huxley's conviction to be set aside. In this regard, although the sole ground of appeal the subject of the grant of special leave to appeal was framed by reference to a miscarriage of justice, the respondent accepted that it could equally be framed as a "wrong decision of any question of law" within the meaning of s 668E(1) of the Criminal Code (Qld). On this basis, the appellant filed an amended notice of appeal raising an alternative ground that the direction involved a wrong decision on a question of law. If such a wrong decision were made, the respondent also accepted the decision to be material and incapable of being subject to the application of the proviso in s 668E(1A) of the Criminal Code. The appeal is to be resolved on this alternative ground.

[8]

Greer's evidence‑in‑chief in the prosecution's case included that she and Rewha were in a relationship. She also knew Huxley and Doyle. Huxley asked her to come to his unit in Burnda Street. She arrived mid‑afternoon. Greer, Huxley, and Doyle then drank quite a bit together. Greer left with Doyle, and they drove to Charters Towers, where Doyle had family. Greer met McCabe for the first time. Greer injected ice (a form of methylamphetamine). Doyle, Greer, and McCabe headed back to Townsville to the Burnda Street unit. An older fellow was at the unit. Greer left Doyle and McCabe at the Burnda Street unit and walked to Rewha's place. Doyle, Rewha, and Huxley picked up Greer from Rewha's place and they returned to the Burnda Street unit. McCabe and the older fellow were still there. Greer walked into the unit. She and Rewha left through the backdoor of the unit to smoke. Rewha went back into the unit. While she was still outside the unit smoking, Greer heard a commotion inside the unit. Greer re‑entered the unit and saw McCabe on the ground in the lounge/kitchen area. The other people she saw were Rewha and the older fellow. Huxley and Doyle were not in the lounge/kitchen area. Greer did not know where Huxley and Doyle were. She could see blood coming from McCabe's facial area. The amount of blood was hand or palm sized. McCabe was breathing, coughing, and spluttering. McCabe was then taken out the door by Rewha and the older fellow. McCabe was not supporting himself. Greer next recalled being at the pub with Rewha. She did not recall seeing Huxley during this time (that is, from Greer entering the unit).
In cross‑examination by counsel for Huxley, Greer repeated that she did not remember Huxley being in the unit. She was outside the unit smoking with Rewha when Rewha went back into the unit. She heard a commotion including more than one thud. She went back into the unit and saw McCabe lying on the floor. The older man was cleaning up. Greer saw blood on various areas on the floor. She did not know for how long McCabe lay on the floor. She saw the older man kick McCabe once on the floor and poke him with an object. When Greer first came into the room, she heard McCabe cough and splutter and try to say something. After that, McCabe just lay on the floor. Greer saw blood pooling on the floor near McCabe's face, spreading about one to two centimetres away from his face. When McCabe was carried out to the garage, his feet were dragging behind him and touching the ground. Greer saw about two drops of blood in the garage. That was the last Greer saw of McCabe. She went to the pub. She vaguely remembered that when she returned to the unit, the older man was cleaning up blood on the floor. Greer recalled a bucket of soapy water and a mop which she had got, and that the older man was cleaning up the blood.
In re‑examination, Greer said the kick she observed was to the left side of McCabe's torso or rib area. She did not see McCabe react to the kick. She recalled that when they returned from the pub, Rewha, Huxley, and Doyle were present.

[20]

The Robinson direction under s 632(3) of the Criminal Code is that the jury "will need to scrutinise the evidence of Candis Greer with great care before you can accept the accuracy and the reliability of her evidence". The impugned direction is the subsequent paragraph, culminating with the words "[i]f you are not satisfied beyond reasonable doubt that the evidence of Ms Greer is truthful, reliable and accurate, then you should disregard it". Whether the direction is treated as a single direction with multiple parts or as multiple directions is not to the point. The point is that the trial judge unequivocally directed the jury that "[i]f you are not satisfied beyond reasonable doubt that the evidence of Ms Greer is truthful, reliable and accurate, then you should disregard it". This accords with the application of the criminal standard of proof of beyond reasonable doubt in the case against Rewha where, as noted, Greer's evidence was the only evidence of Rewha's presence at the Burnda Street unit when the assault occurred. The application of this standard would be wrong, however, in the case against Huxley, where Greer's evidence was part of Huxley's defence that McCabe's death was caused by the assault in the Burnda Street unit when Huxley was not present at the time of the assault. In the case against Huxley, while the Robinson direction (that, for the identified reasons, the jury should scrutinise Greer's evidence with great care before accepting it as accurate and reliable) was not in error, as a matter of law the jury did not need to be satisfied beyond reasonable doubt as to the truth, reliability, and accuracy of Greer's evidence. Rather, the jury was required to consider if Greer's evidence, in the light of the Robinson direction, gave rise to a reasonable doubt about the cause of McCabe's death - that is, that the assault in the Burnda Street unit caused McCabe's death.
In the context of Huxley's defence at trial, Greer's evidence was potentially exculpatory of Huxley as evidence supporting an inference that the cause of McCabe's death was the assault in the Burnda Street unit. This is because the forensic evidence could not identify the cause of death other than that McCabe suffered severe skull fractures. The fractures indicated blunt force trauma to the front of the head and right side of the face area. These injuries would be fatal unless urgent medical treatment was provided. Death could be instantaneous or occur after some time. Given the severity of the head injuries, McCabe would have become immediately unconscious. With these injuries McCabe would have bled from the nose and mouth. On this basis, the forensic evidence left open the possibility that McCabe had died as a result of blunt force trauma to the head during the assault at the Burnda Street unit (when Greer did not see Huxley in the unit) or as a result of Huxley dropping a large rock on McCabe's head elsewhere (as described by Hess in Huxley's disputed admissions).
What then is the meaning of the impugned direction? In submissions for Huxley, reliance was placed on the words "consistent with the directions I will give you in relation to the case against Mr Rewha" as indicating that the impugned direction applied generally to Greer's evidence so that the jury could use that evidence only if satisfied beyond reasonable doubt that the evidence was truthful, reliable, and accurate. The respondent disputed that the direction conveyed this meaning, submitting that it was given in the context of the case against Rewha.
The immediate context of the direction is the jury's use of evidence generally. The directions about Greer's evidence qualify the trial judge's general direction that it was a matter for the jury to decide what evidence to accept, in whole or in part, and what weight should be given to that evidence. The qualifications are equally general. The words "consistent with the directions I will give you in relation to the case against Mr Rewha" may involve a degree of ambiguity, but the substance of the direction conveyed to the jury is clear both in its terms and in its immediate context - that is, that the jury should act on Greer's evidence only if satisfied beyond reasonable doubt that her evidence is truthful, reliable, and accurate. The further direction - that, if not satisfied beyond reasonable doubt that the evidence of Greer is truthful, reliable, and accurate, the jury should disregard her evidence - reinforces the generality and strength of the direction. In the immediate context, the jury could have understood only that it could not use Greer's evidence at all if not satisfied beyond reasonable doubt that her evidence was truthful, reliable, and accurate. That this meaning was conveyed to the jury should be no surprise given that it accords with the expressed intention of the trial judge that a direction to that effect had to be given in the case against Rewha and it was not possible to give a different direction in the case against Huxley. That direction was wrong in law in respect of the charge of murder against Huxley.
The remaining issue is whether the effect of the legally erroneous direction was corrected in the balance of the trial judge's summing up. The problem is that the balance of the summing up and directions given to the jury are all to be read in the context of the impugned direction about how the jury could use Greer's evidence. No subsequent direction or comment of the trial judge said or suggested that, in the case against Huxley, the jury did not have to be satisfied beyond reasonable doubt about the truth, reliability, and accuracy of Greer's evidence and that, rather, in light of the Robinson direction, the jury had to decide if Greer's evidence raised a reasonable doubt to the effect that the cause of McCabe's death was the assault in the Burnda Street unit when Huxley was not present.
Accordingly, while the trial judge summarised Greer's evidence and, amongst other things, the forensic evidence, and dealt with the case against each accused separately, the effect of the impugned direction was not corrected. In the summing up of the case against Rewha, the trial judge repeated the direction in similar terms to the impugned direction four times (ie, made it clear that to convict Rewha the jury had to be satisfied beyond reasonable doubt that Greer's evidence was truthful, reliable, and accurate). These statements, while confined to the case against Rewha, do not suggest any undoing or amelioration of the impugned direction applying generally. If anything, they reinforced the importance of the impugned direction.
The trial judge then moved to the case against Huxley. In that context, the trial judge directed the jury (correctly, given its centrality to the prosecution of Huxley) that to convict Huxley of murder the jury had to accept the truth of Hess's evidence of the admissions Huxley allegedly made to Hess to the standard of beyond reasonable doubt. The trial judge also said:

[22]

The natural and ordinary understanding of the first part of this statement commencing "[t]he essence of the defence case", which refers to it being a reasonable possibility that McCabe died as a result of injuries sustained in the assault at the Burnda Street unit, is that the trial judge is summarising the defence case for Huxley. The natural and ordinary understanding of that part of the statement commencing "[i]n summary, with respect to the prosecution case" is that the trial judge is identifying the elements of the offence of murder in the prosecution case against Huxley. The problem is that while the trial judge correctly identified that in order to convict Huxley the jury had to be satisfied beyond reasonable doubt that Hess's evidence was truthful, reliable and accurate, the directions did not refer to Greer's evidence other than in the context of the defence case for Huxley. The directions did not suggest that in weighing Hess's evidence and whether the jury was satisfied that the evidence was true (including, for example, that McCabe was alive when Huxley allegedly dropped the large rock on him), the jury was also entitled to weigh the evidence of Greer and, critically, that, in so doing, the jury was not bound to be satisfied beyond reasonable doubt that Greer's evidence was truthful, reliable, and accurate. Rather, the question for the jury was whether, albeit in the light of the Robinson direction in respect of Greer's evidence, the jury considered that Greer's evidence raised a reasonable doubt as to whether the cause of McCabe's death was the assault in the Burnda Street unit.
No other aspect of the trial judge's summing up cures the legal error conveyed by the impugned direction. To the contrary, the error is exposed again in the balance of the summing up. Accordingly, while the trial judge reiterated that the forensic evidence did not establish if the fractures to McCabe's skull were caused before or after death and that the jury had to consider the possibility that the injuries were caused in the assault about which Greer gave evidence, this further and final reference to Greer's evidence in the context of the case against Huxley also did not suggest that, contrary to the impugned direction, the jury did not have to be satisfied beyond reasonable doubt that Greer's evidence was truthful, reliable, and accurate.
Contrary to the submissions for the respondent, the fact that Huxley's counsel did not seek a redirection at the close of the trial judge's summing up does not indicate that any error in the impugned direction was cured by the summing up as a whole. Huxley's counsel had objected to the direction and the objection had already been overruled by the trial judge. While Huxley's counsel might have sought a redirection at the close of the summing up, counsel had already submitted to the trial judge that the impugned direction would be "very prejudicial" to Huxley (which was correct) and the trial judge had rejected that submission. Further, in the context of the way in which the defence case was put at trial, the respondent's argument that Greer's evidence was not potentially exculpatory of Huxley cannot be accepted.

[23]

The jury ought reasonably to have understood the trial judge to be directing it as the trial judge said he intended - that is, that in addition to scrutinising Greer's evidence with care due to her drug and alcohol consumption and the circumstances in which she gave evidence (the Robinson direction), the jury could only act on Greer's evidence generally if satisfied beyond reasonable doubt that Greer's evidence was truthful, reliable, and accurate. In the case against Huxley, that direction was wrong in law. The legal error was reinforced, not corrected, by the subsequent directions because those subsequent directions never conveyed that the jury was not required to be satisfied beyond reasonable doubt that Greer's evidence was truthful, reliable, and accurate in the case against Huxley but, rather, was required only to decide if her evidence (albeit in light of the Robinson direction) gave rise to a reasonable doubt about McCabe's cause of death.
Contrary to the concern of the trial judge, the making of two separate directions, one in the case against Rewha and another in the case against Huxley, would not have caused confusion. In the case of co‑accused, juries are routinely directed to use some evidence against one co‑accused only and to disregard the same evidence against another co‑accused, even if the evidence may incriminate both co‑accused.[4] In the present case, the mental exercise required of the jury would have been no more difficult. The trial judge could have given the Robinson direction applying generally (as the trial judge did). The trial judge could have given the required direction about Greer's evidence in the case against Rewha only (that the jury needed to be satisfied beyond reasonable doubt as to its truthfulness, reliability, and accuracy in order to convict Rewha). The trial judge could have given the required direction about Greer's evidence in the case against Huxley only (that, albeit in light of the Robinson direction, if, in the context of the whole of the evidence, the jury considered that Greer's evidence raised a reasonable doubt to the effect that McCabe's cause of death was the assault in the Burnda Street unit, Huxley had to be acquitted).
The appeal should be allowed, the conviction quashed, and a new trial ordered.

[26]

Mr Huxley contends that the impugned direction required the jury to be satisfied beyond reasonable doubt that Ms Greer's evidence was truthful, reliable and accurate before it could be used in their consideration of any of the three cases they were required to decide; that is, Mr Huxley submits that the impugned direction was not, and would not have been understood by the jury to have been, limited to the case against Mr Rewha. The effect of this, Mr Huxley submits, was that the impugned direction limited the use to be made of Ms Greer's evidence in his defence, by conveying that her evidence was to be disregarded if the jury did not accept it beyond reasonable doubt. The direction was correct insofar as it applied to the use of Ms Greer's evidence in the prosecution case against Mr Rewha but was wrong if it applied to Mr Huxley's defence because the jury should have been entitled to accept some, all or none of Ms Greer's evidence in the case for Mr Huxley and, in the event that the jury did accept her evidence as it related to Mr Huxley's defence, Mr Huxley would have been entitled to an acquittal if Ms Greer's evidence raised a reasonable possibility that Mr Huxley was not guilty.
As originally framed in this Court, Mr Huxley's contention was that the impugned direction constituted a miscarriage of justice within s 668E of the Criminal Code (Qld). At the hearing of the appeal, Mr Huxley was granted leave to amend his notice of appeal to contend, in the alternative, that the impugned direction constituted a "wrong decision of [a] question of law" within s 668E.
The respondent conceded that, if the impugned direction applied to Mr Huxley's defence, then it involved an error of law, and a wrong decision of a question of law, that would require a retrial.[6] However, the respondent argued that the jury could not have understood the impugned direction in that way or, if they did, the jury could not have been left with that understanding by the conclusion of the trial judge's summing-up to the jury.
As explained below, the impugned direction would not have been understood by the jury to have been relevant to their assessment of Mr Huxley's defence. If the jury did understand the impugned direction in that way when it was given then, by the conclusion of the summing-up, the jury would have been in no doubt that the impugned direction was directed to the evidence of Ms Greer only in the prosecution case against Mr Rewha. Put differently, taken in the context of the whole of the summing-up, the impugned direction would not have been understood by the jury as requiring them to be satisfied to the beyond reasonable doubt standard before they could consider Ms Greer's evidence as it had the potential to raise a reasonable doubt as to whether he caused the fatal injury to Mr McCabe. Accordingly, the impugned direction would not have deflected the jury from their "fundamental task of deciding whether the prosecution has proved the elements of the charged offence beyond reasonable doubt",[7] including that they must acquit Mr Huxley if there was any reasonable possibility consistent with innocence. Counsel's failure to seek a redirection reinforces this conclusion.
It follows that there was no misdirection of law in the trial of Mr Huxley, no wrong decision by the trial judge of a question of law and no miscarriage of justice, and the appeal must be dismissed.

[29]

Accordingly, "[i]n every case, the ultimate question must be whether, taken as a whole, the judge's instructions to the jury" deflected the jury "from its fundamental task of deciding whether the prosecution proved the elements of the charged offence beyond reasonable doubt".[11] The plurality emphasised that "[w]hether there has been on any ... ground whatsoever a miscarriage of justice must always require consideration of the whole of the judge's charge to the jury".[12]
These principles concerning the approach to a misdirection of law apply in the same way whether the misdirection is characterised as an "error of law", as a "miscarriage of justice",[13] or as a "wrong decision of any question of law".[14] With regard to this last category, "[a] 'wrong decision of any question of law' includes misdirections on matters of substantive law as well as misdirections on matters of adjectival law".[15] So, for example, a misdirection on a matter of law may amount to a "wrong decision of any question of law", at least where, as in this case, the direction was made following a request to the trial judge for a direction so that it may be understood as the product of a "wrong decision".[16] A wrong decision of a question of law may also be made when a trial judge declines to give a redirection at the conclusion of a summing-up.[17]
A misdirection on a matter of law is always contrary to law; it is always a departure from the requirements of a fair trial according to law.[18] Where there is a misdirection or other error of law, the jury, which must take their instruction on matters of law from the judge, must necessarily be misled to some extent unless the error is corrected.[19] Whether a direction involves a misdirection on the law may depend upon contextual matters, including the issues at the trial, the evidence, closing addresses by counsel and the whole of the trial judge's summing-up.
Sometimes a misdirection on a matter of law will prevent the application of the proviso because it will be so serious that it will be a substantial miscarriage of justice irrespective of whether it might have affected the outcome of the trial. Sometimes it will not. Not every error of law, however trivial, will give rise to a substantial miscarriage of justice.[20] If there has been a misdirection or other error of law, the question is always whether there has been a substantial miscarriage of justice, and the resolution of that question depends on the particular misdirection and the context in which it occurred.[21]

[30]

Mr Huxley was charged with the murder of Mr McCabe on or about 16 August 2015 at Crystal Creek or elsewhere in Queensland, contrary to ss 300 and 302 of the Criminal Code. Mr Rewha was charged with assault occasioning bodily harm in company and Ms Doyle with accessory after the fact to murder, or alternatively with accessory after the fact to manslaughter. A directed verdict of acquittal was entered in respect of the former charge against Ms Doyle before the impugned direction.
There were two key locations relevant to the alleged crimes: (1) a unit in Townsville where Mr Huxley was living during August 2015 and at which it was alleged that Mr Rewha assaulted Mr McCabe on 15 August 2015 ("the Burnda St unit"); and (2) the location at which the remains of Mr McCabe were ultimately found, a short distance off a road in the Crystal Creek area.
The prosecution case against Mr Huxley was, in short, that he had inflicted an injury that caused the death of Mr McCabe at or near the location where the remains were found. The only direct evidence in support of the prosecution's case was the testimony of an associate of Mr Huxley, Darren Hess. Mr Hess' evidence was that, during a conversation he had with Mr Huxley, Mr Huxley confessed that he had "done a hit on a bloke for $10,000" by having picked up a rock and dropping it on his head. In addition to this confessional statement, there was also circumstantial evidence from which the prosecution claimed the jury could infer beyond reasonable doubt that Mr Huxley had inflicted the fatal injuries to Mr McCabe with the intent to cause his death or to cause him grievous bodily harm. This included phone and cell network details; vehicle movements; forensic evidence; medical evidence from expert witnesses on the nature and extent of the injuries discernible from Mr McCabe's remains; and the fact that blood splattering and Mr McCabe's DNA were found in the boot of a blue Holden Commodore associated with Mr Huxley.
Mr Huxley's defence was that there was a reasonable possibility that the fatal injuries were inflicted upon Mr McCabe during an earlier assault at the Burnda St unit, in Mr Huxley's absence, and not at the location where his remains were found. This possibility created an obstacle to the requirement that the jury be satisfied beyond reasonable doubt that it was Mr Huxley who caused the injuries resulting in Mr McCabe's death. Mr Huxley also strongly argued that the jury should reject Mr Hess' evidence of Mr Huxley's confession.

[39]

The trial judge's summing-up occupied two days. It commenced on the afternoon of 16 September and was completed by late afternoon on 17 September 2019. It comprised five sections: (1) introductory/opening directions on the law; (2) a summary of the evidence; (3) specific indictment directions; (4) general observations by the trial judge; and (5) a summary of rival arguments in the closing addresses.
The impugned direction was given during the first section of the summing-up, in the course of the trial judge providing instructions about evaluating witness testimony. The trial judge's directions concerning Ms Greer's evidence were introduced by his observation that there were "two witnesses" whose circumstances required "special attention". By the end of the summing-up, the jury knew that these two witnesses, Ms Greer and Mr Hess, were the critical witnesses in the prosecution cases against Mr Rewha and Mr Huxley respectively and that it would be necessary to accept their evidence as it supported those cases beyond reasonable doubt in order to reach a guilty verdict in either case.
The trial judge first addressed Ms Greer's evidence. He emphasised the need for care in assessing the accuracy and reliability of her evidence. He noted that she was an important witness who gave the only evidence of "the circumstances of the assault" on Mr McCabe. The trial judge reminded the jury of Ms Greer's evidence of drug and alcohol consumption on 15 August 2015, and her admission that she only had a recollection of bits and pieces of what occurred that day. He then reminded the jury of Ms Greer's initial refusal to give evidence. As earlier mentioned, the trial judge gave the Robinson direction. These observations were unfavourable to the prosecution, and unfavourable to Mr Huxley (although consistent with principle) to the extent that Mr Huxley relied upon Ms Greer's evidence to raise a reasonable possibility that Mr McCabe was fatally injured at the Burnda St unit. As for the other witnesses who had consumed drugs and/or alcohol, the trial judge gave the strong warning that, like Ms Greer's evidence, their evidence "may not be based upon a true and reliable recollection but a confabulation comprised by the effects of drugs and time".
The trial judge then gave the impugned direction.

[41]

There are inherent limitations in assessing how the jury would have understood the summing-up by reference to the transcript of the trial alone. This Court did not have audio evidence of the summing-up; we do not know how the jury would have heard the words that appear in the transcript. The jury's understanding of the sentence beginning with "[i]n particular" in the impugned direction, which comprised 45 words, may have been affected by the emphasis or the cadence with which the words were spoken.
The first thing to notice is that, even divorced from the context of the entire charge, the immediate impression given by the explicit reference to Mr Rewha's case was that the trial judge was concerned with Ms Greer's evidence being used in an adverse way in the context of "the case against Mr Rewha". The italicised words can be understood in a way that treats the phrase "consistent with the directions I will give you" as no more than a parenthetical insertion in a sentence directed to making a particular point in relation to the case against Mr Rewha. The impugned direction did not point the jury explicitly to the use to be made of Ms Greer's evidence in Mr Huxley's defence. Mr Huxley's argument therefore depends upon the jury drawing an inference that the impugned direction applied to all uses of Ms Greer's evidence in the joint trial. For the following reasons, the jury would not have drawn that inference from the impugned direction.
First, Mr Huxley did not suggest that the first sentence of the impugned direction involved error. Accordingly, Mr Huxley's argument was that the jury would not have understood the second and third sentences to be narrower in their operation than the first sentence. However, in the second sentence, the words "[i]n particular" mark a qualification of, and departure from, the general direction in the previous sentence that the jury "should only act upon [Ms Greer's] evidence if", after considering her evidence with a warning about the effect of her consumption of methylamphetamine, and all the other evidence in the trial, they were "convinced of its truth and accuracy". Those words signalled to the jury that, in contrast to the immediately preceding general direction, the words that immediately followed related to a particular aspect of the trial. Which aspect? That aspect was the case against Mr Rewha, as indicated by the phrase "in relation to the case against Mr Rewha". In contrast to the specific reference to the case against Mr Rewha, there is no reference at all at that point to Mr Huxley.
It is not obvious whether the phrase "in relation to the case against Mr Rewha" would have been understood by the jury as a qualification of the words that immediately preceded the phrase - "the directions I will give you" - or as a qualification of the words that immediately followed it - "as a matter of law, you should only act upon her evidence if you are satisfied beyond reasonable doubt that her evidence is truthful, reliable and accurate". If it was the former (ie, the phrase was understood as a qualification of directions yet to be given in relation to the case against Mr Rewha), then the jury would have been left unsure about the scope of the direction except that it concerned, at least, the case against Mr Rewha and would be clarified by directions to be given in relation to that case. If it was the latter (ie, the phrase was understood as a qualification of the specific direction that followed), then the jury would have understood the direction to be concerned only with the case against Mr Rewha.
The latter understanding is more likely because, if the phrase was understood only to operate by reference to future directions, then the jury would not have received a coherent direction. Further, given that the future directions were foreshadowed to be made in relation to the case against Mr Rewha, and, as explained below,[24] the jury understood that the cases against the three accused were separate, it is improbable that the first sentence would have been understood as a direction about the use of Ms Greer's evidence in Mr Huxley's defence.
In the third and final sentence, the words "beyond reasonable doubt" and "truthful, reliable and accurate" link it to the second sentence and render it unlikely that the jury would have understood the final sentence to be a separate direction from the preceding sentence, which expressly linked the impugned direction to the case against Mr Rewha. For the jury to have understood the third sentence to apply to Mr Huxley's defence, they must have: (1) recalled that Ms Greer's evidence was relevant to that defence; and (2) decoupled that sentence from the previous one. It is conceivable that some members of the jury, hearing the sentence literally, may have inferred that it applied to all uses of Ms Greer's evidence. However, it is more likely that, at most, the jury were left wondering if this direction applied to using Ms Greer's evidence in relation to Mr Huxley's case.
It follows, without more, that the impugned direction was not a misdirection. That conclusion is sufficient to dismiss the appeal. However, to the extent that any members of the jury would have been left wondering, the matter would have been put beyond doubt when the direction was considered in the context of the summing-up as a whole.

[43]

The following aspects of the summing-up prior to the impugned direction reinforce this conclusion.
First, the jury were clearly informed that the trial involved three separate cases against three accused. Before giving the impugned direction, the trial judge then told the jury that the "[p]rosecution case against Mr Huxley" rested upon a confessional statement to Mr Hess and observed that the only direct evidence in support of the prosecution case against Mr Huxley for murder was the evidence of Mr Hess. The trial judge foreshadowed further and more elaborate directions about the "case of murder", and then stated that the jury must be satisfied beyond reasonable doubt that the evidence of Mr Hess was reliable and accurate because of its centrality to the prosecution case.
The trial judge then observed that the "case against each defendant" relied on or involved circumstantial evidence, but that circumstantial evidence was relevant only to a very minor extent in the "case against Mr Rewha". This was because the "heart" of the "case against" Mr Rewha was the evidence of Ms Greer. The trial judge contrasted this with the cases involving Mr Huxley and Ms Doyle, in which there was a substantial body of circumstantial evidence relied upon by the prosecution.
Accordingly, at the time of hearing the impugned direction, the jury were conscious that they must give the cases concerning each accused separate consideration and that the evidence as it related to each case was different.
Second, when the trial judge commenced addressing Ms Greer's evidence, the jury had recently been reminded of the significance of Ms Greer's evidence for the case against Mr Rewha, but not of the significance of her evidence in the cases against the other co-accused. The trial judge made no comment about the relevance of Ms Greer's evidence to Mr Huxley's defence prior to the impugned direction.
Third, the jury were made aware prior to the impugned direction that guilt must be established beyond reasonable doubt. The trial judge had already given the jury a direction about what was required for a verdict of guilty based entirely or substantially on circumstantial evidence. He then observed:

[56]

As the respondent submitted, this direction likely had the effect of framing Ms Greer's evidence in the minds of the jury as an obstacle in the pathway to Mr Huxley's conviction. The impugned direction was not repeated.
Fourth, in the third section of the summing-up, the trial judge worked his way down the indictment to give specific indictment directions to the jury for each of the counts against each of the accused. This reinforced the earlier instructions that the jury must give the case against and for each of the defendants separate consideration. First, addressing the case against Mr Rewha, the trial judge referred back to the direction he gave the previous day concerning Ms Greer's evidence. In contrast, he did not do this later in addressing the case against Mr Huxley. The trial judge also linked the requirement to be satisfied as to Ms Greer's evidence beyond reasonable doubt with the prosecution's burden of proof. His Honour referred to the requirement for guilt that Ms Greer's evidence be accepted beyond reasonable doubt three times.
Addressing the case against Mr Huxley, the trial judge referred repeatedly to the need to accept the prosecution case beyond reasonable doubt and, five times, to the need to accept Mr Hess' evidence beyond reasonable doubt to reach a verdict against Mr Huxley. Addressing Mr Huxley's defence, the trial judge gave no similar direction concerning the use of Ms Greer's evidence. Rather, there were references to the "reasonable possibility that McCabe died as a result of the injuries sustained in the event Greer speaks of"; to the "reasonable possibility that McCabe died as a result of other causes"; and to considering the opinion evidence "together with the possibility that the injuries were caused in the assault that Greer speaks of".
The trial judge next addressed the case against Ms Doyle and referred to four elements to be proved beyond reasonable doubt, the fourth including an act based on Ms Greer's evidence - that Ms Doyle requested Ms Greer to provide a false statement to police. The trial judge referred to the requirement that the jury be satisfied beyond reasonable doubt "that the evidence persuades you that Ms Doyle did these acts, or any of them". This is again repeated later, drawing attention to the requirement that Ms Greer's evidence on this question was required to be considered on the beyond reasonable doubt standard.
The fifth relevant aspect of the summing-up following the impugned direction is that, in giving further directions concerning the circumstantial nature of the case against Mr Huxley, the trial judge reiterated that if there was any reasonable possibility consistent with innocence the jury must find Mr Huxley not guilty.
Sixth, immediately before commencing a summary of the parties' rival contentions, the trial judge made observations concerning the events at the Burnda St unit. The observations, favourable to Mr Huxley, suggested that the jury consider possibilities about the severity of the assault and, in effect, whether it was more serious than the evidence of Ms Greer might have suggested. The observations were premised upon an acceptance of Ms Greer's evidence, particularly by referring to possibilities "before Greer entered the room" twice. There is no suggestion that this acceptance was required to be reached beyond reasonable doubt.

[73]

Mr Huxley's submissions on the relevance and effect of these exchanges should not be accepted, not least because the trial judge's comments on day 14 of the trial were not carefully formulated directions given to a jury and the subject ruling did not conform to those comments. The comments were made in the context of an exchange with counsel in the absence of the jury, and well before the actual delivery of the impugned direction during the summing-up. If anything, the ruling suggests that the trial judge had retreated to a recognition, favourable to Mr Huxley, that the relevance of Ms Greer's evidence for Mr Huxley should not be "overlooked" in the summing-up.
Further, and in any event, those remarks do not reveal an intention on the part of the trial judge that the jury be instructed that they must assess Ms Greer's evidence on the beyond reasonable doubt standard for the cases of each of the co-accused. Rather, his Honour's remarks indicate that the direction needed to be so framed in the context of using the evidence as a pathway towards conviction. The particular passage of the prosecutor's closing at trial to which Mr Huxley has referred does not lead to a contrary view. What was said there cannot be said to endorse a future direction to the jury that they must only act upon Ms Greer's evidence as it relates to each of the co-accused if they are satisfied beyond reasonable doubt of its truth, reliability and accuracy. To read the passage in that way would be to reverse what was actually said. The prosecutor was emphasising that the beyond reasonable doubt standard applied to the case against Mr Rewha.
The better view is that, in referring to "the same caution", the prosecutor there was referring to his earlier remarks that "you must use some caution with is [sic] Ms Greer, because she was so heavily intoxicated on the day, and she qualified her memory in so many different ways of, 'I can't remember'. She had islands of memory." Accordingly, the prosecutor's statement that the jury were to approach Ms Greer's evidence with the same caution in both Mr Huxley's defence and the case against Mr Rewha is a statement that goes more to the general direction later given by the trial judge on the need to bear in mind the effect of drug use on particular witnesses when evaluating their evidence.

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