High Court majority dismisses Brent Huxley’s appeal for murder of Michael McCabe

A recent High Court decision demonstrates the often highly technical and complex task of crafting directions for a jury which accurately and unambiguously state how the law relates to the case.

On 18 September 2019, Brent Malcolm Huxley was convicted after a trial before Justice North in the Townsville Supreme Court of the murder of Michael James McCabe.  He was sentenced to life imprisonment.

McCabe, a known illicit drug user, was murdered on or about 16 August 2015. Police found McCabe’s “partly-skeletonised and partly-mummified” body in remote bushland at the bottom of a steep, rocky embankment in Crystal Creek, north of Townsville, on September 17, 2015.

An autopsy revealed Mr McCabe had multiple fractures to his face, consistent with having a large rock dropped on his head.

Another man named Jason Douglas Taylor was also convicted of McCabe’s murder in a separate trial. Taylor’s appeal against conviction was subsequently dismissed.

The Crown case was that there was a “plan” schemed by Huxley to murder Mr McCabe with the help of others. It was alleged McCabe had been assaulted hours before his death on 15 August 2015 in a unit in Burnda Street, Townsville.

A second co‑accused named Matthew Luke Horima Rewha was charged with the unlawful assault occasioning bodily harm in company of McCabe at the unit on 15 August 2015. A third co‑accused, Leonie Doyle, was Huxley’s girlfriend at the time. She was charged with being an accessory after the fact to the manslaughter of McCabe.

The prosecution alleged that Rewha assaulted McCabe in the unit, and that Huxley subsequently murdered McCabe on 16 August 2015 at Crystal Creek or elsewhere in Queensland.

Hess’ evidence

The primary evidence against Huxley was from Darren Hess, who claimed that Huxley had confessed he had committed the murder to him in August 2015.

Hess gave evidence at the trial that Huxley had “showed up” at his address in Townsville on three occasions in August 2015. On the first visit, Mr Huxley was driving a blue Commodore.  On the second visit, Hess asked Mr Huxley “what have you been up to?” and that Mr Huxley replied “the usual stuff” and then said “I done a hit on a bloke for $10,000”. Mr Huxley showed him “how he picked the rock up and dropped it on him and he said the fellow went wahhh – gone”. On the third visit Huxley told him the $10,000 had gone into his cousin’s account.

Hess’ evidence included a demonstration of the action that Mr Huxley showed him with the rock, describing that Mr Huxley “pretended to pick the rock up and dropped it”.

There was also forensic evidence that was consistent with the boot of the blue Commodore being used to transport Mr McCabe after the assault in the unit, phone evidence that suggested some travel out of Townsville, an inference able to be drawn from the evidence that Huxley and Taylor were in the blue Commodore when it was travelling north of Townsville, the consistency of the presence of rocks where McCabe’s remains were found with the mode of killing allegedly described by Huxley, the forensic evidence that the injuries to McCabe’s head were consistent with a rock being dropped on him, and that would have caused his death if he had been alive when that occurred, and Huxley’s attempts to conceal his connection to the blue Commodore and to Taylor.

Medical evidence

Toxicology results of McCabe’s showed one milligram per kilogram of amphetamine in the liver and two milligrams per kilogram of methylamphetamine in his liver.

Toxicology expert Professor Drummer said that the amphetamine found in McCabe’s liver was likely to be the by-product of the use of methylamphetamine. Although he could not exclude the possibility that the consumption of methylamphetamine had caused Mr McCabe’s death, death directly from use of methylamphetamine was uncommon.

Pharmacologist Professor Brown also gave evidence that the level of two of methylamphetamine was one which had been associated with death. Whether that was the case for Mr McCabe depended on the length of time between the dose and death, how much dose he took and how well his cardiovascular system was working. The concentration in the liver did not indicate the blood level concentration, as the methylamphetamine accumulates in the liver.

Professor Duflou, a forensic pathologist, was called to give evidence for Huxley’s defence. He considered there were three possibilities for the injuries to the head. Professor Duflou did not think the cause of McCabe’s death could be determined with any degree of certainty.

Greer’s evidence

Another witness who gave evidence at the trial was Candis Nicole Greer. She had been in a relationship with Rewha and was friends with Doyle. 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 she eventually gave was that:

→ she had consumed significant quantities of methylamphetamine and alcohol on 15 August 2015.
→ her memory of 15 August 2015 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”.
→ Huxley asked her to come to his . She arrived mid‑afternoon.
→ she Huxley, and Doyle then drank quite a bit together at the unit in Burnda Street.
→ she left with Doyle,  injected ice (a form of methylamphetamine) and returned to the Burnda Street unit with Doyle and McCabe.
→ she walked to Rewha’s place before Doyle, Rewha, and Huxley picked her up from Rewha’s place and they returned to the Burnda Street unit. McCabe and an older fellow (Taylor) were still there. Greer walked into the unit.
→ Greer heard a commotion inside the unit while she was smoking outside. She 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.
→ she did not know where Huxley and Doyle were, and did not recall seeing Huxley during this time.
→ 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.
→ she next recalled being at the pub with Rewha.

Trial directions

The jury were directed by the trial judge (Justice North) that, as a matter of law, if they did not accept beyond reasonable doubt the evidence of Hess that the admission was made by Huxley in the terms given in Hess’ evidence and that it was a true account by Huxley of what occurred, there was no case against Huxley. It was contended on Huxley’s behalf at the trial that the jury should not accept the evidence of Hess. Apart from the significance of Hess’ evidence as to an admission by Huxley of the manner in which he said he killed McCabe, the admission was consistent only with McCabe still being alive when the rock was dropped on him.

The impugned direction was as follows:

“You should only act upon [Ms Greer’s] evidence if, after considering her evidence with the warning that I have given in mind, and all the other evidence in the trial, you are convinced of its truth and accuracy. 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. If you are not satisfied beyond reasonable doubt that the evidence of Ms Greer is truthful, reliable and accurate, then you should disregard it.”

Section 632 of the Criminal Code provides that:

“(1) A person may be convicted of an offence on the uncorroborated testimony of 1 witness, unless this Code expressly provides to the contrary.
(2) On the trial of a person for an offence, a judge is not required by any rule of law or practice to warn the jury that it is unsafe to convict the accused on the uncorroborated testimony of 1 witness.
(3) Subsection (1) or (2) does not prevent a judge from making a comment on the evidence given in the trial that it is appropriate to make in the interests of justice, but the judge must not warn or suggest in any way to the jury that the law regards any class of persons as unreliable witnesses.”

The principles governing miscarriage of justice by instructions to the jury were considered in Hargraves v The Queen. The plurality identified the relevant principle, “expressed at a high level of abstraction”, as follows:

“[T]he judge’s instructions to the jury, whether by way of legal direction or judicial commentary on the facts, must not deflect the jury’s attention from the need to be persuaded beyond reasonable doubt of the accused’s guilt before returning a verdict of guilty.”

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”. 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”.

Huxley was granted special leave to appeal with respect to a miscarriage of justice arising from trial judge’s direction that Greer’s evidence should not be used unless the jury was satisfied beyond reasonable doubt that her evidence was truthful, reliable and accurate.

Gordon, Steward, and Gleeson JJ

The majority, consisting of Gordon, Steward, and Gleeson JJ, held that the jury would not have drawn any inference that the impugned direction applied to all uses of Ms Greer’s evidence in the joint trial:
→ the impugned direction referred to Greer’s evidence with respect to the phrase “in relation to the case against Mr Rewha” which signalled to the jury that the words that immediately followed related to the case against Rewha
→ that phrase was more likely understood by the jury 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 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.

The majority held that that the impugned direction was not a misdirection, particularly when taken with the summing-up as a whole.

Gageler CJ and Jagot J’s dissent

In contrast to the majority, Gageler CJ and Jagot JJ held that the impugned direction was a misdirection, which was “reinforced, not corrected, by the subsequent directions”:

“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…
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.”

This was a tight 3-2 High Court decision which turned on the construction of the impugned direction, with a majority dismissing the appeal. In this case, an apparent ambiguity or misstatement led to the case being determined by the High Court, and the jury’s guilty verdict with respect to murder almost being overturned.

Author admin