Huxley v The Queen

[2023] HCATrans 36

[2023] HCATrans 036

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B39 of 2022

B e t w e e n -

BRENT MALCOLM HUXLEY

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GORDON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA BY VIDEO CONNECTION

ON FRIDAY, 17 MARCH 2023, AT 2.25 PM

Copyright in the High Court of Australia

GORDON J:   In accordance with the Court’s protocol for remote hearings, I will announce the appearances for the parties.

MR A.M. HOARE appears with MR S.G. MOON and MR N.J. EDRIDGE for the applicant.  (instructed by Bressington & Partners Solicitors)

MR C.W. WALLIS appears with MS E.L. KELSO for the respondent.  (instructed by Office of the Director of Public Prosecutions (Qld))

GORDON J:   Yes, Mr Hoare.

MR HOARE:   Thank you.  The two points which we will be discussing ‑ ‑ ‑

GORDON J:   Just one matter, sorry.  I noticed you need an extension of time, but I understand that is not opposed.  Is that right?

MR HOARE:   That is so.

GORDON J:   Thank you.

MR HOARE:   I make that application.  The two points that will be the subject of oral argument are in respect of grounds 2 and 3.  I do not seek to advance ground 1 in oral submissions.  In respect of ground 2, and in response to the submission of the respondents, the evidence of Greer was, effectively, quarantined from the jury’s consideration to the detriment of a legitimate defence that was otherwise open on ‑ ‑ ‑

GORDON J:   It seems as though we have some problems, Mr Hoare.  Your image fell out and we have now lost the audio.  I might just adjourn the Court for a short moment to see if we cannot drop the line and then reconnect.

Adjourn the Court, please.

AT 2.27 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.31 PM:

GORDON J:   Yes, Mr Hoare.

MR HOARE:   Thank you.  I apologise.  I may not be able to distinguish who is asking me questions, should that occur, though I will endeavour to do my best to answer them.

GORDON J:   Well, we will make sure that we identify who it is.

MR HOARE:   Thank you, your Honour.  Now, if I can come to ground 2, and this is in response to the submissions of the respondent, the evidence of the witness Greer by reason of the direction given by his Honour effectively quarantined from the jury’s consideration to the detriment of a legitimate defence that was otherwise open on the evidence.

That defence was, put in precise terms, that the fatal assault occurred at the unit at Kirwan and occurred in the absence of the applicant.  Now, taking the directions so far as they relate to the witness Greer in combination, the reliability and truthfulness of the witness was the subject of specific direction to the benefit of the co-accused Rewha.

The direction is first found at application book 30, lines 19 to 26 in the context of other criticisms being made as to aspects of that witness’s evidence.  Then secondly, it is repeated ‑ ‑ ‑ 

GORDON J:   It is Justice Gordon.Did you say page 30?

MR HOARE:  Of the application book.

GORDON J:  Thank you.

MR HOARE:   Page 14 of the summing‑up.

GORDON J:  Thank you.

MR HOARE:   Yes, now, that direction follows from other criticisms – and legitimate criticisms – as to the quality of that witness’s evidence.  That then is repeated again, to the benefit of co‑accused Rewha, at application book 68, lines 12 to 22.  The effect of that direction – well, if I come to this point – the acquittal of Rewha is explicable by the jury adhering to the judge’s directions – that is, that they did not find the threshold of proof expressed in that direction met in respect of that witness’s evidence, and therefore put the entirety of her evidence aside.

Now, there is of course another explanation for his acquittal which may be that he was simply not proved to be a party to the assault as alleged to the unit at Kirwan.  But it is still asserted on behalf of the applicant that that is an explanation for his acquittal, which is the jury adhering to that direction.

The direction identified by the respondent – and that appears at application book 19, lines 30 to 37 – and the effect of that direction would be – and I paraphrase its content without diminishing its importance – is that there was no evidence, should Ms Greer not be accepted, that Mr Huxley was present at the unit at that time.

That did not correct that error – in fact, it compounded it – because once that evidence is put aside – that is, that my client was present at the unit and the content of what occurred to the unit is excluded by reason of the judge’s direction, although there is evidence that the deceased McCabe was injured at that unit – and that comes from the forensic evidence that has blood remnants even after cleaning, soaking of blood onto the couch, remnants of blood under the counter and in the grout of tiles – and further in the boot of the blue Commodore – which is associated with the applicant – the evidence . . . . . extent of the injury that Mr McCabe suffered – and further, the person to in fact cause that injury – and further to that point, in the absence of Greer’s testimony being used by the jury, there was no counterbalance to the admissions made to Hess.

Now, Hess is a person to whom the admissions were made as to a mechanism of death, which was not excluded by the relevant pathologist and forensic anthropologist’s evidence.  But it is asserted further that had the evidence of Greer not otherwise being given the hurdle of needing to be accepted – is truthful and reliable, needing to be accepted beyond reasonable doubt – that evidence could have been utilised by the jury to affect at least the weight of the evidence given by Hess, or counterbalance the assertions as to the mechanism of death.

GORDON J:   Just so I am clear about that, Mr Hoare, does that mean that in response – that what is set out at paragraph 96 on application book 150 by Justice of Appeal Mullins is what you take issue with?

MR HOARE:   Yes.  Yes, and I will make sure I am at the ‑ ‑ ‑

GORDON J:   I am so sorry, I missed that.

MR HOARE:   Yes, your Honour that is correct.  That is correct, because the effect of disbelieving Greer’s evidence was not neutral in consequence because the content of Greer’s evidence had a number of features which were to the advantage of Huxley specifically.  They were that he was not present when it may be inferred from Greer’s evidence when McCabe was assaulted, and secondly, when Greer was next in position to see the deceased McCabe he was prone on the ground, unmoving despite being prodded, if I use the generic term, by Mr Taylor.  He had blood coming from his mouth, which is consistent with the evidence of Dr Samarasinghe, that a person who had suffered the fatal injuries would have had blood pooling and collecting from his mouth.

In that context, the evidence as to the nature and extent of the assault was not simply neutral by removing the applicant from that location at that time.  The additional evidence had the effect which has already been stated, which was to raise the possibility that Mr McCabe was fatally assaulted in that unit.  The cause of his death – the substantial cause of his death was in the absence of the applicant, and by that being the direction having that effect, a miscarriage has occurred.  And I hope that answers your Honour’s query.

GORDON J:   Thank you.

MR HOARE:   Now, it is said, therefore, that a pathway to acquittal was . . . . . that direction, and despite the way it was characterised by the prosecution in its contentions as not being a serious assault, it is plain that the evidence of Greer was contrary to that position, and I have summarised those aspects of evidence which would lead a tribunal of fact to that conclusion.

It is also – and I say this to address this ground in its finality – the evidence of the pathologist was that the fatal injury could have occurred whilst the deceased was prone on a hard surface and the blunt force being applied by feet stomping upon him and, further, that had that occurred, death would have followed if not immediately, soon thereafter, within an hour or so.

That possibility of the assault and a serious assault occurring at the Kirwan apartment that exculpate the applicant, effectively excluded from the jury’s consideration by the direction, and it is on this basis and that particular . . . . . that is consequent to the applicant specifically that justifies special leave being granted on this ground, and that is how I articulate the applicant’s submission in respect of ground 2.

GORDON J:   Thank you.  Do you wish to say anything in relation to ground 3?

MR HOARE:   I did.  Now, I wish to . . . . . in respect of ground 3, it is asserted by the applicant that the inconsistence between the judgment in Huxley and Taylor causes disquiet, and if it were to be characterised, it is an abuse of process as it is a contravention of the principle of incontrovertibility.  Now, what must be acknowledged in respect of this ground is that there is a body of evidence which was put forward in

Taylor’s trial, and in particular, the admissions of Taylor, which was distinct to what was led at the applicant’s trial.  That would, on a superficial analysis, place it squarely within the category of R v Jobling where the evidence then became incidental rather than central to the factual inquiry of the jury.

However, the central issue as to where the killing occurred and that issue in respect of – sorry, the evidence which was given by Greer, the evidence which was given by the pathologist, was in all material respects the same as the evidence which was given in the trial of Huxley, being the applicant.  So, it is said that although there was a body of evidence which came from the co‑offender which was distinct, there was additional evidence which distinguishes it from the case of Jobling in addition to the co‑offender’s statements against interest.

The other matter which is raised is the fifth ground.  This goes and enhances, to the extent it can, the point which is made on behalf of the applicant, is that the Full Court – excuse me, I will get the reference to where the contentions are mentioned.  I will find the reference in the application book.  But the point which we have made by reference to that, is that the contention by the prosecutor at the trial of the applicant Huxley, was that the assault which occurred at the unit was not a particularly serious one and was not causative of a serious injury to Mr McCabe . . . . . and the killing was effected by a rock of that size.  That contention is set out at application book, page 105, at line 12, and what follows.

So, it is that position taken by the Crown in combination with the other evidence which is independent of the co‑accused, Taylor, which is said by the applicant offends that principle and, as a consequence, leads to an abuse of process.   It is, therefore, said that the factual inquiry that the jury was asked to undertake in Huxley – sorry, the applicant’s case in Huxley – was inconsistent with the verdict as it was affirmed in the judgment in Taylor – albeit, it is noted in the judgment in Taylor, there were two alternative sites of the killing which was left on the basis of the evidence . . . . . in that case.  It is said that that ground has sufficient general importance to justify special leave, should this Court be satisfied it is an appropriate vehicle for that consideration.

That, unless I can assist the Court further, are the means by which I expand upon ground 3.

GORDON J:   Thank you, Mr Hoare.  Mr Wallis.

MR WALLIS:   Thank you, your Honours.  If I might commence with addressing ground 1, recognising that it has not been addressed in oral argument, but it has not been abandoned.  Can I deal with it in this way and in short compass.  The ground as advanced conflates the notion of the usual directions given, that is, what is and what constitutes evidence upon which the jury can rely and the distinct directions in this case, which were referred to, inter alia, by the Court as strong directions or very strong directions by Justice Mullins, as they attended what was said to be the prejudicial remarks by the learned Crown Prosecutor.

The directions necessary, of course, in a particular trial will depend upon the issues and they are framed necessarily by reference to the way in which the case was litigated.  Recognising in this case that the directions to the jury were given after some considerable passage of time and some considerable body of actual admissible evidence between the opening address and the summing‑up, the court was correct, the respondent submits, to conclude – or Justice Mullins was correct to conclude in the Court of Appeal with the concurrence of the other members of the court, that the directions, the usual directions, in combination with the strong directions were sufficient to ameliorate any perceived prejudice.

The strong directions, for completeness, were those found in the application book at pages 22 and 23 that specifically reference what was said to be the impugned statements of the learned Crown Prosecutor and that the jury were directed as a matter of law to disregard those.

Operating on what the Court said in Gilbert v The Queen, that juries are to act or assumed to act on directions given to them, the combination of the directions given in circumstances of when they were given and how they were given were sufficient in this particular case.  And, as a result, ground 1 does not lead to, in our respectful submission, or warrant the grant of special leave.

If I can deal with ground 2 in this way, if I can take the Court to the determination in the Court of Appeal at first instance, and recognising that at page 128 of the application book at paragraph [4] and then enumerated from (1) through (5) are the particular grounds as advanced.  The ground advanced before this Court was not precisely configured within that framework of the grounds alleged in the Court of Appeal.

The observation, therefore, that the applicant has drawn the Court to at application book page 150,  paragraph [96], are not necessarily determinative, we submit, so far as the conclusion of the directions in this particular case.  Be that as it may, while the complaint alleged in this Court is somewhat distinct, we accept it is interrelated with what was categorised as ground 5 in the court below.

The position of the respondent is that no issue is taken that the evidence of Ms Greer had the capacity to affect the evidence of Mr Hess, that is, the confessional witness.  But the respondent contends that the directions as they were given were not erroneous when one considers not only how they were given in the context of a conjoined trial, but the way in which the case was litigated.

The degree of detail that might be necessary in advancing this point is beyond that which was advanced necessarily in the Court of Appeal below, but there are some positions that the respondent wishes to take your Honours to for some clarity, and to develop these submissions, and that is this.  So far as Ms Greer’s evidence is concerned, it occupies first prominence at application book 29, starting at line 25, so almost immediately after some standard directions his Honour focused on Ms Greer’s evidence.  It cannot be lost sight of, of course, that this is a conjoined trial being run together, and so the necessary evidence was distinctly and separately admissible in different ways.

At application book 30 starting at line 19 his Honour gave the impugned direction and what the respondent fixes upon and why the respondent contends that the observation of her Honour Justice Mullins in the Court of Appeal that the directions were appropriate is at about line 21 and starting with the sentence “In particular”, what is said there is:

In particular, consistent with the directions I will give you in relation to the case against Mr Rewha, as a matter of law, you should only act upon her evidence if you are satisfied beyond reasonable doubt that the evidence of Ms Greer is truthful, reliable and accurate.

The respondent submits that that cauterises or constrains the consideration of Ms Greer’s evidence precisely to Mr Rewha’s case because, if that is so, over the page at application book 31, his Honour then turns to deal at line 4 with the case against the applicant here and references, particularly Mr Hess.  At about line 8 ‑ ‑ ‑

GORDON J:   Can I ask one question about that before you get to that, Mr Wallis? 

MR WALLIS:  Yes.

GORDON J:   What do we make of the paragraph in the summing‑up that immediately follows the impugned paragraph?

MR WALLIS:   The evidence of Mr Hess is the only direct evidence?

GORDON J:   Correct.

MR WALLIS:   Yes.  That needs to be considered in the combination of what follows in the way in which his Honour summed up the case, so far as the jury’s consideration of how they would approach Mr Hess’ evidence.  The direct evidence against Mr Huxley was that of Mr Hess and whilst Ms Greer’s evidence had the capacity to undermine that, it undermined it only in certain circumstances.  The complaint made – or put against the respondent – is that the direction was precisely that the jury were directed in Mr Huxley’s case – the applicant’s case, I am sorry – that they must be satisfied beyond reasonable doubt of the truthfulness, accuracy and reliability of Ms Greer before they can act on it in order to exculpate – to use the vernacular – Mr Huxley, the applicant.

So, it is a situation – the respondent submits – where the summing‑up needs to be considered in totality.  That is why the distinction between the particular cases is essential and, particularly, in circumstances where, at application book, 97, his Honour makes specific reference to this being a case of separate trials being run together and drawing, at least inferentially to the jury, a separation and a separation consideration.

The next observation that the respondent fixes upon, as one proceeds through, is at page 68.  Again, his Honour dealing with Mr Rewha and speaking about Ms Greer, of course he once again reiterates, as a matter of law, the jury must be satisfied beyond reasonable doubt of her evidence before they can convict Mr Rewha.  His Honour does not in any way suggest to the jury that they must be satisfied beyond reasonable doubt of her evidence in order to use it in advance of the applicant’s case – if I can put it that way.

At page 71, there is again an exhortation and direction to the jury, and drawing the distinction between the relevant cases and, necessarily, the evidence and how it was to be used.  At the conclusion of that page, at line 46, his Honour just indicates:

The next topic involves the case against Mr Huxley.

So, the consistent thread that the respondent advances is that there was a distinction to be drawn between the two cases and the approach to be undertaken.

At page 78 of the application book his Honour then also indicates the importance of Mr Hess’ evidence so far as its centrality to the applicant’s case.  At 81, and the respondent fixes particularly on the paragraph commencing at lines 4 through to 24, his Honour made it abundantly clear that there were seven particular matters on which the jury needed to be satisfied beyond reasonable doubt before they could convict the applicant.  And the respondent fixes upon five enumerated, that the applicant did an act that inflicted an injury that caused the death of Michael McCabe.  And his Honour returned to that on the next page, at application book 82, and said at about line 13:

Well, the only act that the evidence speaks of is through the mouth of Hess, and that is the dropping of the rock.

He notes:

It is a circumstantial case –

And then goes on to say you need:

to connect the dots with the evidence that the act caused the injuries that caused the death –

and, importantly, I interject, his Honour said this:

and that the injuries the doctors are talking about, to the head, caused the death and not some other event.

And the “other event” was summed up to the jury as the assault, in essence, at the unit and there was some latent suggestion of the methylamphetamine toxicity.  At application book 83, his Honour returned to that point at line 15 and said:

Here is when you consider the opinion evidence, together with the possibility, but together with the possibility that the injuries were caused in the assault that Greer speaks of.

So, his Honour, now turning to the case against the applicant, makes clear that Ms Greer’s evidence is of assistance in a consideration of whether the jury can be satisfied beyond reasonable doubt of Mr Hess’ evidence and his Honour does not replicate in any of the directions to the jury the proposition that they must be satisfied beyond reasonable doubt of Ms Greer’s evidence before they can use it to support the applicant as opposed to support the prosecution.

His Honour continues on the same vein at application book 97, and that is the point that I took your Honours to with respect to the separate trials.  And at 98 of the application book, it is focused again on the evidence of Ms Greer.  There is no evidence that they were present at the unit, and the relevance of the case to Mr Huxley and does not specifically replicate or, does not indicate to the jury the need to be satisfied as the applicant contends.

Page 101, lines 20 through 32, his Honour returns to the same point again, referencing Ms Greer and how her evidence intersects with the prosecution case.  And then again, at page 104, and the intersection in the summary of the respective cases put.

So, ultimately, the respondent’s contention is that the directions as given were sufficient to draw the distinction between the case to be decided with respect to Mr Rewha, and the case to be decided against the applicant.  And that is why we submit that the court was correct, even on the way in which the ground was plead before it and the Court of Appeal to conclude at paragraph 97 and 98 of page 150 of the application book that the directions were satisfactory.  Additionally, beyond the confinement of the prosecution case was that acceptance of Mr Hess’ evidence beyond reasonable doubt precluded Ms Greer’s evidence as being an impediment to proof beyond reasonable doubt.

There was no prejudice, we submit, that was occasioned when viewed in context and while the applicant may well be correct to identify generally that the proposition that a direction requiring proof beyond reasonable doubt before evidence can be used to exculpate is an error, that was not, the respondent submits, what occurred in this particular case, and it had not been demonstrated that this is a matter that warrants the grant of special leave.  It is not a matter of general importance, and it is not a question that particularly arises on this case.

Dealing with ground 3, can I approach it in this way:  the incontrovertibility of final determinations is well understood, it has been expressed by this Court in Likiardopoulos that the parties refer to that the doctrine does not extend beyond parties who are common to a third party.  And that, the respondent submits, is for very good reason, because it recognises the quintessential nature of criminal jury trials.  That is, that juries may act only upon evidence admitted against the particular accused under consideration.  The distinction in Likiardopoulos and the authorities referred to within it is the question of joint trial on occasion, or where the parties or party is common, as was in Rogers and Carroll.

In this particular case, the applicant was said to have been the actor, to use the neutral term, who caused the death of McCabe at Mount Spec. While there was no reference in the case to Mr Taylor being an accessory or a party to that offending under section 7 of the Criminal Code (Qld), the absence of the evidence did not prove the negative position. That is, the failure to acknowledge that Mr Taylor was there does not necessarily preclude Mr Taylor having been there. It just simply was not part of the prosecution case on the admissible evidence.

In Mr Taylor’s case, there were three alternate pathways that led, or said to lead, to conviction:  that Mr Taylor was a party to the applicant causing the death of Mr McCabe in the unit; alternatively, that Mr Taylor was the actor who caused the death at Mount Spec and the applicant was a party.  Or alternatively, that the applicant caused the death at Mount Spec and Mr Taylor was the party.  Where these trials depended independently and recognising that while they might have been co-offenders in the broad sense, they were not jointly prosecuted.  But where the trials depended on questions of admissibility limited to the individuals and the cases prosecuted in the way that they were, it cannot be said that a conclusion on one of the alternate pathways to convict, so far as Mr Taylor is concerned, precluded the pathway to convict for Mr Huxley, the applicant.

Ultimately, the respondent contends that absent a special verdict in Taylor’s Case, there was simply no way to determine the pathway to conviction that the jury undertook.  And the observations of his Honour Judge of Appeal Justice Fraser recognised in Taylor’s Case that all three pathways were open and left open the conviction arrived at.  Where two of those pathways necessarily interrelated quite comfortably with the prosecution case so far as the applicant, that cannot create an abuse of process.  Where the third alternate pathway, that is, that the death-causing act was occasioned in the unit by the applicant with the assistance of Mr Taylor, that simply recognises the quality of admissible evidence that was admissible in Taylor’s case as opposed to the applicant’s.  Of course . . . . . and ultimately made a confession himself.

So, recognising the role of a jury in a criminal trial is to return a verdict based on admissible evidence, the proposition here advanced at its core is that, at ground 3, is to contend that when confronted with divergent pathways, to convict against two separate persons relying on evidence not jointly admissible, the prosecution would otherwise be required to make one of two elections.  First, to choose which person to prosecute and therefore make a unilateral decision on what evidence they will rely on, finding it credible and reliable – that is not consistent with the function of the prosecutor’s office.

Secondly, or second, to prosecute neither, because to do so would undermine the integrity of the criminal justice system.  Either election is not consistent, the respondent submits, with sound policy and fits comfortably with the observations of this Court in the special leave application of Jobling, in the full hearing of Likiardopoulos, and the observations of the Queensland Court of Appeal in Jobling at first instance.

One might contend that to convict two persons separately of the same offence committed in different ways, in materially different ways, may become troublesome.  Contention we do not concede on this point; the

question simply does not arise in this case because there was a commonality of pathways to convict.

So, the same factual inquiries to be undertaken demonstrated the overlap between Taylor’s Case and Mr Huxley’s case recognising the admissible evidence.  The respondent submits that the particular circumstances of this case, either individually, in ground 1, 2 or 3 as pled or the questions asked are ancillary, nor collectively do they warrant a grant of special leave.  It is no question of general importance, and no – and it only involved the particular application of settled legal principles to the particular circumstances of this case.

Unless I can assist the Court any further, those are our submissions.

GORDON J:   Thank you, Mr Wallis.  Anything in reply, Mr Hoare?

MR HOARE:   Yes, thank you.  I wish to draw the Court’s attention to the application book at page 30 and lines 19 to 26.  And this is to put in context the directions which were referred to by my friend in respect of Mr Rewha.  In the passage I refer to it is quite apparent that no distinction was given between the use of the evidence, as in that passage it reads in these terms:

In particular, consistent with the directions I will give you in relation to the case against Mr Rewha, 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.

So, that was a direction of general application and not restricted merely to the case of Mr Rewha.  And I refer to the Court to that in the context of the submissions that were made by my friend.

I otherwise have no submissions in reply.

GORDON J:   Thank you, Mr Hoare.  The Court will adjourn to consider the path it will take.

AT 3.05 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.16 PM:

GORDON J:   Mr Hoare, there will be a grant of special leave limited just to ground 1.2 on application book page 153.

MR HOARE:   Thank you, your Honour.

GORDON J:   Is it half a day, more than half a day?

MR HOARE:   Yes, it will not go beyond half a day.

GORDON J:   Do you agree with that, Mr Wallis?

MR WALLIS:   Yes, I do, thank you, your Honour.

GORDON J:   Thank you.  I would be grateful if your instructing solicitors could contact the Deputy Registrar about the arrangements for the hearing of that appeal.

MR WALLIS:   Thank you, your Honour.

MR HOARE:   Thank you, your Honour.

GORDON J:   Would you adjourn the Court, please, until 10.00 am on Wednesday, 12 April.

AT 3.17 PM THE MATTER WAS CONCLUDED