summary Huxley v The Queen [2023] HCA 40

Brent Malcolm Huxley was convicted after a trial in the Townsville Supreme Court of the murder of Michael James McCabe. McCabe, a known illicit drug user, was murdered on or about 16 August 2015. Police found his “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 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.

The Crown case was that there was a “plan” schemed by Huxley to murder McCabe with the help of others.

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

It was alleged McCabe had been assaulted hours before his death on 15 August 2015 in a unit in Burnda Street, Townsville.

The prosecution alleged that Rewha assaulted McCabe occasioning bodily harm in company 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:

→ he had known Huxley for about 13 or 14 years.
→ Huxley “showed up” at his address in Townsville on three occasions in August 2015.
→ On the first visit Huxley was with Doyle and driving a blue Commodore.
→ On the second visit Huxley was driving a gold Land Rover and was there for about half an hour or an hour. They had “a bit of a talk out the back”. Huxley was accompanied again by Doyle. Hess said that he asked Huxley “what have you been up to?” and that Huxley replied “the usual stuff”, and then said “I done a hit on a bloke for $10,000”.
→ 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 asked Hess “if the police had been there yet”, as “they were looking for him”.
→ Huxley also told him the $10,000 had gone into his cousin’s account.

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

Hess’ evidence was supported by forensic evidence that was consistent with the boot of the blue Commodore being used to transport McCabe after the assault in the unit, phone evidence that suggested some travel out of Townsville, the inference able to be drawn from the evidence of the identity of the persons who were travelling in the white Commodore that Huxley and Taylor were in the blue Commodore, when it was travelling north of Townsville and returned to Townsville, so that there were periods in the early hours of 16 August 2015 when Huxley and Taylor were alone together, the consistency of the presence of rocks where McCabe’s remains were found with the mode of killing Hess asserted was 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 liver tissue showed one milligram per kilogram of amphetamine in the liver and two milligrams per kilogram of methylamphetamine in the liver.

Toxicology expert Professor Drummer opined that the amphetamine found in McCabe’s liver was likely to be the by-product of the use of methylamphetamine, as when a person uses methylamphetamine, some of it metabolises to amphetamine. However, due to substantial decomposition, he was unable to draw a relationship between the toxicology results and the concentration of methylamphetamine in the blood and the liver at the time of McCabe’s death. Although he could not exclude the possibility that the consumption of methylamphetamine had caused McCabe’s death, death directly from use of methylamphetamine was uncommon.

Pharmacologist Professor Brown also gave evidence on the significance of the toxicology results from McCabe’s liver. Professor Brown stated that the level of two milligrams per kilogram of methylamphetamine was one which in other people had been associated with death. Whether that was the case for McCabe was a separate question depending 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 by Huxley. 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 unit in Burnda Street. She arrived mid‑afternoon.
→ she Huxley, and Doyle then drank quite a bit together.
→ she left with Doyle, and they drove to Charters Towers, where Doyle had family.
→ she then 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 (Taylor) was at the unit.
→ she left Doyle and McCabe at the Burnda Street unit and walked to Rewha’s place. Doyle, Rewha, and Huxley picked her up 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.
→ Greer then heard a commotion inside the unit. 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 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 trial judge said that in assessing the reliability of testimony of witnesses who had been taking methylamphetamine with or without alcohol, such as Greer, the jury may need to take particular care with their evidence. The trial judge then said:

“It is entirely a matter for you, based on your consideration of the evidence and evaluation of it in light of other evidence that you accept, whether you accept what the witness has said either in whole or in part, and if you accept some or all of it as reliable and what weight, if any, you give to the evidence.
Now, just a little while ago, when I gave you directions about the circumstance that a number of witnesses admitted to using methylamphetamine and how that might affect the reliability of that witness’ evidence, and similar directions in the context of convictions for offences or dishonest conduct, there are two witnesses who I did not include expressly or directly. That is because for different reasons, the circumstances require that I give special attention to these matters.
The first person I will deal with is the witness, Candis Greer. I have already given you some specific directions concerning the care you need to take with respect to the accuracy and reliability of the evidence of a number of witnesses because of their drug consumption. This is particularly so in the case of the evidence of Ms Greer, who is an important witness. In fact, hers is the only evidence that Michael McCabe journeyed from Charters Towers to the unit at Burnda Street that night, or that Michael McCabe was at the unit that night, or of the circumstances of the assault.
You will recall that near the outset of her evidence, when she was called, Ms Greer admitted that she only had a recollection of bits and pieces of what occurred on 15 August 2015. It is plain that on that day, she consumed significant quantities of methylamphetamine combined with alcohol. She conceded that she may have even smoked three pipes of methylamphetamine in the morning of the 15th before she took up with the others and before she journeyed to Charters Towers with Leonie Doyle. You will recall her evidence about the first intravenous shot of methylamphetamine she had with Michael McCabe in the bedroom of Charters Towers and its effects on her. You will recall her evidence of the consumption of alcohol at hotels, and it seems during the journey to and from Charters Towers.
There is another reason for some concern with respect to the accuracy and her reliability, especially the reliability of Ms Greer’s evidence. You will have seen her behaviour when she was first called to give evidence when she refused to enter the witness stand and refused to take an oath or affirmation and refused to answer questions. While this is entirely a matter for you in your assessment of a witness, you may well consider that her behaviour on that occasion reflects adversely on her as a responsible and reliable citizen and bring into issue her reliability and her willingness to obey the law. You might also consider her demeanour and the way in which she gave her evidence in evaluating whether she was a reliable witness. Did she present and behave as a witness with a reliable memory? In the result, you will need to scrutinise the evidence of Candis Greer with great care before you can accept the accuracy and the reliability of her evidence.
…
You should only act upon her 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.”

The trial judge also said:

“The essence of the defence case is that it’s not possible to conclude what caused the death of Michael McCabe because of the state of decomposure of the remains; further, that it’s not possible to conclude whether the face and head fractures occurred before or after death; that the event Hess speaks of did not occur, and you should not accept the evidence of Hess; that Hess has no reliable evidence from which it can be inferred that Huxley assaulted or injured McCabe; that it’s a reasonable possibility that McCabe died as a result of the injuries sustained in the event Greer speaks of, and it’s further contended that it’s a reasonable possibility that McCabe died as a result of other causes, such as a methylamphetamine overdose. In summary, with respect to the prosecution case against Mr Huxley, in order to convict Mr Huxley of the murder of Michael McCabe, you would have to be satisfied, beyond reasonable doubt, of each of the following seven matters: (1) that the evidence of Darren Hess is truthful, accurate and reliable; (2) that Huxley did say the words that Darren Hess says was said; (3) that what Darren Hess says that Huxley said did happen, and is true; (4) that Michael McCabe is dead – and you put a big tick beside that; (5) that Brent Huxley did an act that inflicted an injury that caused the death of Michael McCabe; (6) that the killing was authorised, justified or excused by law – and you can put a tick against that; in other words, it was an unlawful killing; (7) that at the time Huxley did the act that inflicted the injury that caused the death of McCabe, he intended to cause the death of McCabe or to cause him grievous bodily harm.”

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 [2011] HCA 44; (2011) 245 CLR 257. 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 appealed his conviction arguing the verdict of the jury was unreasonable, the prosecutor’s opening address was improper and unfair and he suffered a miscarriage of justice, and the trial judge failed to discharge the jury after the prosecutor’s prejudicial opening.

The appeal was dismissed:

“The extensive cross-examination of Mr Hess gave the jury ample opportunity to assess his credibility and reliability. Mr Hess remained consistent in conveying the essence of the conversation with Mr Huxley on the second visit in which the admission was made”

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.

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.”

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 refeered 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 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 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 JJ’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. This case 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 evidence, and the assessments of the evidence required to arrive at a verdict. 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.