Huxley v The Queen [2023] HCATrans 113 (7 September 2023)

Last Updated: 13 September 2023

[2023] HCATrans 113

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Brisbane No B19 of 2023

B e t w e e n -

BRENT MALCOLM HUXLEY

Appellant

and

THE QUEEN

Respondent

GAGELER J
GORDON J
STEWARD J
GLEESON J
JAGOT J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 7 SEPTEMBER 2023, AT 9.44 AM

Copyright in the High Court of Australia
MR A.M. HOARE: If it please the Court, I appear with my learned friends, MR S.G. MOON and MR N.J. EDRIDGE for the appellant. (instructed by Bressington & Partners Solicitors)

MR C.W. WALLIS: If the Court please, I appear with MS E.L. KELSO for the respondent. (instructed by Office of the Director of Public Prosecutions (Qld))

GAGELER J: We, of course, gentlemen, do have the names and initials. You do not necessarily need to announce your appearance in that form.

MR HOARE: I apologise. Should I be here again, I will not do so.

GAGELER J: We look forward to seeing you.

MR HOARE: If I can go to the heart of the matter, the Court has received the outline of the oral submissions. What is contended before on behalf of the appellant that the impugned direction which appears at the core appeal book, page 30, was directed generally to the effect of the witness Greer’s evidence.

GORDON J: Just so I am clear, that is between lines 22 to 26?

MR HOARE: Yes. Yes, thank you, Justice Gordon. It was a direction given in clear terms as to the use which the Jury could make of it. The use could only be made of that witnesses’ evidence if the high threshold were met. It is not limited or contextualised by the directions. In fact, that is made clear by the direction itself, where his Honour says:

consistent with the directions I will give you in relation to the case against Mr Rewha –

Then, I pass now to the practical effect of that direction in the context of this case.

GLEESON J: So, your argument is that that direction is not relevantly contextualised by the whole of the rest of the jury summing‑up.

MR HOARE: No, it is not, your Honour. And, to meet that question further, in the supplementary material filed by the applicant, the conclusion to the argument appears at page 17.

GORDON J: This is the supplementary book or the ‑ ‑ ‑

MR HOARE: It is the further supplementary book.

JAGOT J: What page was it, sorry?

MR HOARE: Can I perhaps – sorry, Justice Jagot, I will go to the nub of the issue, perhaps, rather than – but the page I will take the Court to is at page 21 of that supplementary material.

GORDON J: What is the – just so I understand what the purpose of taking us to this is for.

MR HOARE: That argument demonstrates his Honour’s actual purpose of the direction and his Honour’s consideration where his Honour says:

and it would be gibberish to be telling the jury that in respect of its admissibility or its application for the other defendants, there’s a different test to be applied.

JAGOT J: Sorry, where is that?

MR HOARE: That is at line 5 through to line 17, and the passage I have just cited is at line 11.

JAGOT J: Thank you.

GORDON J: Do you propose to go through the contextual matters in taking, consistent with Hargraves and the other decisions of this Court, that one must look at the charge as a whole?

MR HOARE: Yes, I accept that the summing‑up has to be looked at as a whole. I am not trying to take out of context. It is plain that there were detailed, consistent and clear directions given as to all the issues which arose between the Crown and the other defendants.

GORDON J: Can I just take maybe a couple of minutes just to walk through to make sure that I understand how it sits. At page 19, his Honour gives a direction in relation to the Greer evidence, which sort of sets what might be described as the playing field.

MR HOARE: Yes. So, there is ‑ ‑ ‑

GORDON J: This is at lines 35 and following.

MR HOARE: Yes, your Honour.

GORDON J: That was the first, in effect, mentioned in the summing‑up of this issue?

MR HOARE: That is so. The effect of – the conclusion his Honour draws is a correct one. That is, if they reject the evidence of Ms Greer then there is no evidence of his presence, so it will not prove the negative. But that, effectively, is the issue. The reason it is the issue is that once the evidence of Greer is not before the jury, because it is does not reach that high standard, there is no evidence as to the effect of the assault upon the deceased.

There is evidence before the court – sorry, before the jury, I should say, which includes bloodstain and projected blood splatter. There is evidence of blood within the blue Commodore, which quite plainly, on the other evidence, was the vehicle used to transport Mr McCabe north, to the site where the body was found. That had the ability to demonstrate that there was an assault, and even perhaps a serious assault at the unit, but not a grave assault.

GLEESON J: Well, a “vicious” assault was the way that it was put by counsel for the accused.

MR HOARE: Yes, that is so. But it was put by counsel for the accused also in the context of the acceptance of Greer’s evidence, which included that he was immobile after being prodded, there was a pooling of blood from his nose and mouth, and he was then carried from the room.

GLEESON J: That is not the way the trial judge summed it up at page 102, he said that the counsel:

described the assault at Burnda Street as vicious referring to the evidence of the blood on the floor, under the kitchen bench and on the curtains –

MR HOARE: I am sorry. I was not trying to qualify the assertion by the trial counsel, that being a vicious assault. I am merely saying that the assertion that it was a vicious assault and, in connection with that submission to the jury, that it was a grave assault, was on the basis of the other aspects of the evidence which Ms Greer spoke of, which include what I was identifying then, which is a pooling around the nose and mouth, the fact that he was immobile once prodded, that he was carried from the room, and then there, at the other, sites projected blood through the unit, which includes the soaking stain on the chair or lounge, presumptive blood on the curtains, which were to the rear of the unit, and then some projected blood which was underneath the counter.

So, to take up on your Honour Justice Gleeson’s point, there was evidence of an assault, and even a serious assault, but the use that can be made of it, if Greer’s evidence is excluded by reason of the direction is, in fact, to bolster the prosecution case rather than to assist the defence case in any way, because what then is left is no evidence as to the gravity of the assault or the physical effects of that assault, particularly as observed by the witness Greer, but consequentially a serious assault which led to the deceased being placed or forced into the back of the car, taken from that place to Crystal Creek, and then killed.

The effect of the direction, even though there was other evidence of the assault, because the particular effect on the deceased of that assault was taken from the jury. It did not have a neutral effect, and the defence was not otherwise assisted by the remaining evidence, albeit coming from the forensic pathologists and the blood at the scene.

I have perhaps taken myself out of order of the speaking notes. Can I just take a moment to ensure that I have put those matters before the Bench as I intended to do so? The point which is made on behalf of the appellant is that Greer observed the aftermath of a significant assault. I have already spoken of those indicators in the forensic evidence as it was found at the unit. Aside from that, there is the statement that the deceased had blood pooling around his nose and mouth. That presentation was consistent with, or at least not inconsistent with, the facial fractures which were the subject of the reports of both Dr Samarasinghe and Professor Duflou.

There was, secondly, an available mechanism to cause those injuries. Although the use of a rock, which was the case theory of the prosecution, could not be excluded, it could also occur by stomping by short feet. In that regard, the only evidence of the shoes worn by the person who it is inferred committed the assault comes from the witness Greer, and she described the shoes as being joggers, but nevertheless there is evidence of him wearing some type of shoes.

The position of the deceased at the time of observation was lying largely face down. The reason I bring the Court’s attention to that is that both doctors preferred the injuries being inflicted whilst the deceased was – sorry, the injuries were inflicted to his face with the rear of his skull on a hard object. In the context of Ms Greer witnessing the effect of the assault and the aftermath of the assault, that is not excluded by the evidence in the observations that she sees.

There then is, on the basis of what Ms Greer observes, a meshing between those observations and conclusions of the pathologist as to the effect of the facial fracture, which can lead to unconsciousness – which Ms Greer observes – can lead to the pooling of blood around the nose and mouth – which Ms Greer observes – and in that regard the defence, that aspect of the defence case, that reasonable thesis that the fatal assault was inflicted upon the deceased at the unit in the absence the appellant, was effectively removed from their consideration unless they were satisfied of that high standard which was imposed upon by his Honour, by reason of the direction.

GLEESON J: Why does that hypothesis not amply come from what the trial judge said at page 101 of the court book, lines 20 through to 32?

MR HOARE: It is accepted that his Honour the trial judge expressed in detail the relevant points which I have made now in terms of the forensic consequence of what was observed by Greer. The other evidence of the pathologist, and the evidence from Officer Griffiths as to the blood splatter, that is not in contention. The issue is, however, before the jury could address that evidence and the precision of that evidence, they needed to have been satisfied of a critical part of that evidence, being the evidence of Greer being truthful and reliable beyond reasonable doubt. They do not get to the point of assessment of that evidence, even given in detail, and even with those consequences, until they meet the threshold and that high threshold imposed.

GORDON J: Can I just about that, just to make sure I am clear. When one reads the charge as a whole, it sort of has five chapters, or five parts. We have addressed the opening directions by reference to pages 19 and 30, page 19 being the first; in effect, setting the playing field in relation to Greer’s evidence; 30, you identify the impugned direction and as a question about what that means. What then follows in part 2 is what might be described as a summary of evidence between pages 29 and 67, and Greer is again set out. At no part in that aspect is there any reiteration of what you might describe as the impugned direction.

MR HOARE: No. I accept that.

GORDON J: Then, you go to part 3, which is what you might describe as the specific indictment directions, where they deal with each of those to the subject of the joint trial. Rewha first, then Huxley, and then Doyle. Am I right that the repetition of the impugned direction is only given in relation to Rewha – I think two or three times – and not in relation to Huxley?

MR HOARE: No, that is so, but the direction is given in clear terms at the point I speak of. It is given in clear terms ‑ ‑ ‑

GORDON J: That is back at 30. I just want to go through the chapters, just to make sure that I am clear about the way I ‑ ‑ ‑

MR HOARE: Yes, your Honour is absolutely correct. There is ‑ ‑ ‑

GORDON J: Then, when you get to part 4, which are sort of the general observations, you have the joint trial, but separate consideration direction, and then you have a further explanation at 98, which is a sort of passage, I think, that is relied upon significantly by the Crown, where there is a differentiation between Huxley and Doyle, and there is a consideration of the Greer evidence. Again, no repetition of the impugned direction.

MR HOARE: No, that is so.

GORDON J: Then, there is the summary of the closing arguments, which is really part 5. Again, their counsel for the accused, Mr Walters, reminds that the jury that, in effect, Greer confirmed that neither Huxley nor Doyle were at the unit at the time, and even if they disregarded Greer, there was no evidence that Huxley was there. Is that a fair sort of summation ‑ ‑ ‑

MR HOARE: It is a fair summation – sorry, that is an accurate summation of the summing‑up. The issues which arise in the summing‑up are, as was said before, done carefully. There is no unnecessary repetition, except within the context of the direction which is being given. It is accepted that it is a single direction, which is the subject of the criticism. What is said, it is not corrected or qualified by the other directions which are given, but are given in context. So, by example, there is a specific direction, again given in respect on the lies so far as they relate to Mr Huxley – and that appears at 99 to 101. There is the circumstantial evidence in respect of both Mr Huxley and Mr Doyle – which is at 95 to 97. Then, an accurate summary of the evidence in respect of Ms Greer at pages 38 to 41, and appropriately ‑ ‑ ‑

GORDON J: Page 38 or 98?

MR HOARE: Sorry, 38. There was the summary of the rival contentions which commences for Mr Huxley at 102. The summary of the evidence, in respect of Ms Greer, is, within the context of the summing‑up, close to how his Honour accurately summarises the evidence of Mr Hess. It is said that – and to flesh out what your Honours are asking of me, the concession is made it is said once. But in that direction, his Honour says, consistently with the cases, I will explain it to you in respect of Mr Rewha. Then, there is a repetition of that direction in respect of Mr Rewha, which is absorbed by reference to the earlier passage, which is the subject of criticism, specifically in respect of Mr Huxley.

GORDON J: Sorry, when you say “absorbed”, do you mean “absorbed” in relation to your client?

MR HOARE: Well, because the earlier direction, his Honour says, specifically – similar to the directions – I am paraphrasing now, I should not be – the directions which are going to be given in respect of Mr Rewha. So, there is a direction as to the use which could be made of Greer’s evidence for all defendants, but in particular Mr Huxley. That is said by his Honour:

consistent with the directions I will give you in relation to . . . Mr Rewha –

where that same direction is given, assisting Mr Rewha’s case, as is appropriate, but at the same time diminishing the case of Mr Huxley.

STEWARD J: Do we not need to partly read the impugned direction with what was said on pages 23 and 24, when his Honour was setting out the Crown case in summary form? So, on 23, between lines 15 and 25, it says:

The Prosecution case against Mr Huxley . . . rests upon the confessional statement Mr Hess –

And then, on the following pages – on page 24, between lines 20 and 25, his Honour says:

In the case of Mr Rewha, for reasons I will go into . . . the case against Mr Rewha, the extent to which circumstantial evidence is relevant is very minor because the heart of the case against him is the evidence of Ms Greer –

So, when the jury are hearing the impugned direction, they have just been told that, to set up the context.

MR HOARE: That is so. They have been told that, then they have been told that there is a – I am just ensuring – yes, that is so. The focus then turns to how the jury should consider the witnesses. That is, they may accept some of none of the witnesses’ evidence, and those touchstones of honesty and reliability.

STEWARD J: If the impugned direction on page 30 had commenced with the phrase, “in relation to the case against Mr Rewha”, instead of appearing halfway through that, would you have had any complaint about that?

MR HOARE: No, but it did not.

STEWARD J: No, all right.

MR HOARE: That is probably the simplest answer I can give.

STEWARD J: That might be the nub of your case.

MR HOARE: Yes, it is – and to fill it out at this point – and it is a minor point because it just comes from the Crown closing – I say this because the Crown closing was in accordance with the direction which I have taken the Court to. This is in the respondent’s further material at page 326, at lines 44 and what follows – the base of that page, and to the next page at 327, to line 2.

GORDON J: I am sorry, we are in the respondent’s book of further materials?

MR HOARE: No, I am sorry, it is at page 417 – I have been reading the wrong – I am sorry, there are multiple page numbers, so I apologise.

GAGELER J: Which ones are we using?

MR HOARE: It is the red page number at the top of the page. I am sorry. There are three page numbers. It is 417 at the top of the page, 326 at the bottom, it is page 27 of the addresses. And, I am sorry, I am hoping that 417 has not been a matter which has been automatically produced when this document has been provided to me. It is a passage which reads in these terms:

Okay. Now, back to Mr Rewha. His evidence – his – the case against him depends exclusively on the evidence of Ms Greer. Since her evidence is so important to the prosecution case, do you approach her evidence in any way different from as I’ve outlined her to you in relation to Mr Huxley? No. You approach her evidence with the same caution, bearing in mind the same difficulties with her memory, as you do in the case of Mr Huxley.

And then, it continues and it is reinforced as to the universality of the direction in respect of Ms Greer’s evidence at the conclusion at the base of that page, about line 44, where it says:

So if you accept that interpretation of the evidence and you accept that beyond reasonable doubt, then you would find Mr Rewha guilty. But remember, crucial to all of that is the evidence of Ms Greer. You don’t approach her evidence in any different way because you’re considering one case as opposed to the other.

That part of the closing is entirely consistent with the direction I have taken the Court to, and it is also consistent with his Honour’s reasoning behind the direction, which appears in the argument.

STEWARD J: Just so I am clear, this is the closing address of the Crown?

MR HOARE: That is the closing of the Crown, yes.

STEWARD J: Of the Crown. Thank you.

JAGOT J: The reason for the direction is what you took us to earlier, which was page – just remind me of where that is again.

MR HOARE: I am sorry. It is in the supplementary material of the appellant, and it appears – the argument, in fulsome terms, because there was, at this stage, a ruling being made in respect of the discharge of the jury and other applications of the defence, so at page 16 ‑ ‑ ‑

JAGOT J: Page 16, at the top?

MR HOARE: Page 16, at the top, yes.

JAGOT J: Yes. Mr Walters is for whom?

MR HOARE: The appellant, for Mr Huxley.

JAGOT J: Yes.

MR HOARE: And it commences ‑ ‑ ‑

GLEESON J: I am sorry, just before you leave page 418, if you look at line 38, it seems to be common ground with the prosecution that the assault was a vicious one:

he suffered an injury which interferes with health and comfort because he’s semi‑conscious if not unconscious.

MR HOARE: Yes.

GLEESON J: All right.

MR HOARE: I will deal with the prosecution with respect of Ms Greer, and also the appellant in respect of Ms Greer. They couch their directions in conformity with the direction, but also to make use of a possibility that the jury would find Ms Greer’s evidence to be proved to that relevant standard.

STEWARD J: Once the Crown, for the purposes of their case against Mr Rewha, had to allege that an assault took place in the apartment, in the terms that Justice Gleeson has identified, what additional shades of viciousness do you then say you could have got out of Ms Greer’s evidence? Is it the pooling of the blood, the lack of mobility and being carried out of the room?

MR HOARE: Yes. Yes, it is those three things.

STEWARD J: Did the Crown in any way deny those three things as part of its case?

MR HOARE: No, no, except the point of commenting upon how you would address Ms Greer’s evidence and the comments they made, consistent, as I said, with the ruling and other issues in respect of her intoxication and problems with timing. The effect of Ms Greer’s evidence, if rejected wholly, there was no evidence that Mr Rewha was in the room at the time. Secondly, the evidence of Ms Greer – and I do not want to press this as though that is the inevitable consequence, and that even itself demonstrates that Ms Greer’s evidence was rejected, because the content of Ms Greer’s evidence was also that Mr Rewha was not a participant in any meaningful way in the assault as she observed it.

So, there were two pathways for Mr Rewha’s acquittal, one of which is the whole rejection of that evidence, and the other is a partial acceptance in respect of what was observed. But directing myself ‑ ‑ ‑

STEWARD J: You say partial acceptance, but, just to be clear, they did not dispute those three aspects of Ms Greer’s evidence – or did they?

MR HOARE: No, no. There was not some other way of – can I just pause, so I am framing it correctly?

STEWARD J: Yes, of course. Please do.

MR HOARE: The evidence was stated accurately by the prosecution by reference to what Ms Greer said, qualifications were given as to the use which could be made of that evidence by reference to the use of amphetamine, the internal issues with her memory, and other comments as to her – I may have someone find where that commentary is made.

STEWARD J: Thank you.

MR HOARE: I am sorry, I cannot address the Court specifically to that point right now ‑ ‑ ‑

STEWARD J: That is okay.

MR HOARE: ‑ ‑ ‑ but I will ensure that the Court has it before the conclusion.

GLEESON J: I think it would assist me if you could identify where Mr Walters addressed the jury about the three matters that you have identified, because just looking at page 152 of the respondent’s book of further materials, at least where the viciousness of the assault is identified, and that portion is clearly focused on the various pieces of evidence about blood.

MR HOARE: Yes. Again, I am sorry – somewhere on this Bar table is a summary of those, the points which are made by both the appellant and the prosecution. I apologise that I do not have it immediately to hand.

JAGOT J: Could I just ask this – I assume you are going to get those references at some point ‑ ‑ ‑

MR HOARE: Yes, yes, I am.

JAGOT J: ‑ ‑ ‑ I may be oversimplifying now, but is your point simply that, if you wanted to try these two people together, then you had to give the directions that the trial judge thought were “madness” and “gibberish”?

MR HOARE: Yes.

JAGOT J: I mean, I know the trial judge thought that, but your point is, no, you are going to try these people together – they had to be told, as against Rewha, you perform this mental exercise, but that is unlawful mental exercise. It is erroneous as a matter of law for exculpatory purposes on behalf of your client, and that is it.

MR HOARE: That is it. It is simply that the evidence gets used differently in the two different cases.

JAGOT J: And the jury had to be directed as to that in each case separately.

MR HOARE: That is so, and I can accept his Honour’s frustration as to how that is asserted, but it can be done, firstly, by identifying the different cases, and also the differing obligations on the prosecution by proving its case ‑ ‑ ‑

JAGOT J: Sure.

MR HOARE: ‑ ‑ ‑ and what is necessary for a defence to merely raise a defence. It could have been done without a need for a separate trial, is what I am expressing now.

JAGOT J: Yes. I am not saying it had to be a separate trial, but the relevance, then, as I understand it, of the appellant’s supplementary book of further materials, where Mr Walters is saying, well, that is very prejudicial and the trial judge saying, well, that is “madness”, that is “gibberish” and going the other way ‑ ‑ ‑

MR HOARE: Yes.

JAGOT J: ‑ ‑ ‑ is actually – its relevance is only to demonstrate, in one sense, irrespective of all the contextual things that might be in the summing‑up, the trial judge intended exactly what was said at page 30. That was the intention, that was what the prosecution said, that was the intention of the trial judge ‑ ‑ ‑

MR HOARE: That is consistent with how ‑ ‑ ‑

JAGOT J: ‑ ‑ ‑ that in both cases you use the evidence in this way, and that is just, on your case, legally erroneous.

MR HOARE: It is legally erroneous and, in this case, it led to a material effect or injustice.

JAGOT J: Effect. Yes.

MR HOARE: It is accepted, in response to what Justice Steward was asking me, but it does come to some relatively small and discrete pieces of evidence. But those relatively small and discrete pieces of evidence, which include the immobility, inferring an absence of consciousness, the possibility of a facial fracture due to the blood, and the fact that he was carried from the room meshes then with the pathologist, the time of death and the causes of death.

JAGOT J: But also, the fact that your client was said not to be there ‑ ‑ ‑

MR HOARE: Of course, yes.

JAGOT J: ‑ ‑ ‑ for the assault in the unit.

MR HOARE: Yes. And, of course, the way the case was left to the jury made that less important, but it becomes a critical factor for a jury.

JAGOT J: I thought it was left to the jury that the injuries in the unit might be the cause of death. Is that not right?

MR HOARE: No. So, the prosecution case was limited to my client’s direct act to the deceased as and around Crystal Creek.

JAGOT J: As at the site of where the body was?

MR HOARE: As and about the site.

JAGOT J: Right. Yes.

MR HOARE: Yes. And so it is, of course, material to the appellant’s case, and certainly material to the jury, that he was absent for that particular assault.

GAGELER J: Can I just ask you a question about the way you framed your ground of appeal as a miscarriage of justice, which is the third limb of section 668E. Could it equally, or perhaps better be framed as a wrong decision on a question of law?

MR HOARE: Yes, it can. It can. The simple answer is, yes, it can.

GAGELER J: Yes.

MR HOARE: Because it is asserted now and is asserted in the submissions that it was a wrong decision of law that had that consequence.

GAGELER J: Yes. Thank you.

MR HOARE: Can I just see where my juniors are in respect of the ‑ ‑ ‑

JAGOT J: When you say “had that consequence”, that is because you accept that the error of law you say was material or had to be material?

MR HOARE: Yes. I am sorry, I do not mean to – yes, it has a material effect upon the appellant’s case. I am sorry, I just realised that I was taking, I thought, Justice Gordon, to a passage of the argument.

GORDON J: It might have been Justice Gleeson, but that is okay.

MR HOARE: I apologise. I was taking your Honour to the passages which deal with the objective to the direction, which is in the supplementary material.

STEWARD J: Whose supplementary materials?

MR HOARE: I am sorry. The appellant’s further supplementary material. The discussion commences at page 16, at line 31.

GORDON J: Sorry, I missed that page number.

MR HOARE: Page 16, line 31, to the next page, page 17 at about line 9. The Court will see at that first aspect at line 41, Mr Walters says:

Well, that’s very prejudicial to my client’s case.

That naturally segues into a discussion with Mr Schmitt, who acted for Mr Rewha, who clearly endorses the direction. Then at page – sorry, I am just ensuring the Court has that before them. There is then, at lines 1 to 10, which speaks about matters more generally of a Robinson-type.

GLEESON J: Lines 1 to 10 of?

MR HOARE: Page 18. There then is, at page 20 in line 19, the appellant’s counsel revisits the issue. That goes over to page 21, line 17. At the top of that page, the appellant’s counsel expresses his concern as to the effect that that direction will be. Then it proceeds to the passage that I have taken the Court to earlier. That is, I think, a fulsome extraction of the exchanges as between counsel and his Honour in respect of the direction, which led to its form.

GAGELER J: Mr Hoare, where are we up to in your outline?

MR HOARE: I have, I hope, not taken myself away from it too significantly, and I have probably gone almost immediately to the conclusion.

GAGELER J: Yes.

MR HOARE: I have taken the Court now, effectively, through to the conclusion of paragraph 6(e). Before I move there, I will try and answer the interrogatory as to how the Crown was addressing the issues of Ms Greer’s evidence. I apologise for delaying the Court in this way. In the respondent’s further material, at page 154 ‑ ‑ ‑

STEWARD J: This is the respondent’s book?

MR HOARE: At page 154 – that is, I am sorry, I am going to Mr Walters, the appellant’s counsel. So, the way in which it was dealt with is at page 154, line 44, where Mr Walters said:

what occurred at number 80 Burnda Street –

being the unit address:

when my client was not there – and there’s no evidence that he was there – was not a minor assault, as the Crown would have you believe.

There then is a further description at page 155. He goes through, prior to that passage about the other forensic evidence, but dealing with, specifically, the evidence of Ms Greer, that commences at line 34, and what follows:

And the injuries were such, as Greer described them, that the blood that was coming from the nose or the mouth was the size of the palm of her hand –

And, again, was:

able to be detected weeks later by forensics.

The Court would recall that there had been a significant cleaning event; so, there had been a significant cleaning of the unit by Ms O’Dell in the intervening period. And then, again, it is qualified by Mr Walters at page 156 at line 10:

Also of significance, you might well think, if this was a minor assault, was that McCabe did not respond when he was kicked.

Those three points of reference were made by Mr Walters. In the respondent’s further material at page 380 ‑ ‑ ‑

STEWARD J: Did you say 380?

MR HOARE: I did, your Honour.

STEWARD J: Thank you.

MR HOARE: Mr Cummings, at 380, about line 34, he describes that there was some blood:

about the size of her palm, going up a little bit into her fingers –

and continues with the “smudge of blood”, and then the “couple of drops”. So, the purpose of that address is to diminish the effect of the injuries at that site, but it is – there is an acceptance of some semi‑consciousness by the prosecutor, and I will have that reference in a moment, but I will not delay the Court before I move forward.

JAGOT J: I might be missing something, but if her evidence was that your client was not there in the unit at the time of the assault at all, and then add to that the other evidence that she says the assault was serious and what was put against your client was only that the cause of death was at the site – at the creek – then, in one sense, is the crucial bit not that the he was not there at all?

MR HOARE: The crucial bit of evidence is how Greer’s evidence could act as a counterweight to the confessional statements made to Hess.

JAGOT J: Yes, by Hess – yes, I understand that, but is the most important part of that not whether there were small bits of blood or large bits of blood, or is the important bit that he was not there?

MR HOARE: The important part is a number of things, and I am not trying to – it is an accumulation of pieces of evidence. It cannot be articulated as just being important by reference to one point, because all of those things accumulate to a significant fact.

JAGOT J: I understand, but does that not go to, simply – sorry to cut across you, but is the whole point not, from your point of view, a reasonable possibility that he was assaulted so seriously in the unit that that was the cause of death, not whatever, if anything, might have happened with ‑ ‑ ‑

MR HOARE: That is so, but that does not come from forensic evidence in the absence of Ms Greer.

JAGOT J: No, that is my point, is that Ms Greer’s evidence contributes to – well, one, he was not there, and two, it was a serious assault.

MR HOARE: Well, it goes from being merely a serious assault or some type of assault where there is bloodletting incident, to an assault which is grave, could be causative of the death, and that is because it meshes with the pathologist reports. And so, it is not just that there was an assault there, but it is the additional evidence of Greer which comes to that point.

JAGOT J: Sure. But, critically, that he was not there, you ‑ ‑ ‑

MR HOARE: It is critical that he is not there. That is extremely important.

JAGOT J: Yes, okay.

MR HOARE: I am sorry if I was not listening to your Honour, I apologise if I was not, but I am saying the importance to his case is, of course that he was not there when the person was being assaulted, but, secondly, that the nature of the assault that was observed by Greer ‑ ‑ ‑

JAGOT J: Was serious enough to possibly be the cause of death.

MR HOARE: That is so, that is so. And that because that barrier was put before the jury, before they could act upon it, there was then no counterweight to the evidence of Mr Hess. Now, it is accepted by the appellant – although it is poorly expressed in the conclusion of the submissions, it is accepted by the appellant that the reasoning of the learned trial judge that Mr Huxley, the appellant, could not be convicted in the absence of the acceptance of Mr Hess’ evidence beyond reasonable doubt was a correct one. That was endorsed, then, by the Court of Appeal at paragraph [70] and that is adopted also. The circumstantial evidence, aside from that confession, was insufficient to found a conviction on murder.

The internal issues – I will say it in this way: the confession of Mr Hess was contested. There were issues of his confession which did not correspond with the evidence of his wife. In particular, that Mrs Hess said that there were three visits which were quick visits. She did not recall Mr Huxley or Ms Doyle getting out of the car on any of three occasions, whereas Mr Hess gave the first visit as being between 30 and 45 minutes, and Mr Huxley having a shower; then, on the second occasion, Ms Doyle had a shower. The internal issues in the evidence were that he described himself as a “big‑noter”; that he did not report the admission until after he had read an article about the appellant being charged with murder, and after he had talked to his neighbours, and after he was contacted by the police. Those points are accurately set out in the Court of Appeal judgment.

It must be that the jury were satisfied of the truth and reliability as it goes to the material issues in the confessions made to Mr Hess beyond reasonable doubt. That was the direction that they were given, and it is presumed that they followed it. What is said is that if they were not given the direction in respect of the use of Ms Greer’s evidence, that they needed to be satisfied of its truthfulness and reliability beyond reasonable doubt, there was a counterpoint or a counterweight to the evidence of Mr Hess. That is, critically, that there was a grave assault which was caused of the deceased’s death at the unit in the absence of Mr Huxley, which could have, in turn, lead to the jury to having a doubt about the truthfulness of Mr Hess’ evidence. That has the additional effect of its absence due to what the appellant says are the consequences of the directions. I have addressed what is summarised at paragraph 8 already, out of order.

GAGELER J: That takes us to the Court of Appeal’s reasoning, does it?

MR HOARE: Yes. I said this at the outset, and I perhaps say this at the conclusion – sorry, before I go to that concluding remark, if I can just go at this last stage to what Mr Cummings said about the unconsciousness at 37, which is a qualification of the assault. The prosecutor says:

The assault is bodily harm.

This is at page 327 of the respondent’s further materials. At line 37 and what follows:

The assault is bodily harm.

I am sorry. It is 418. I am reading the wrong number again. I apologise.

GLEESON J: Page 418?

MR HOARE: Yes.

GORDON J: This is what you took us to before?

MR HOARE: Yes. It is on the same – it is immediately above the passage which I took your Honours to.

GORDON J: So, what lines are you now reading?

MR HOARE: Line 37 and what follows.

GORDON J: I think you took us to that.

MR HOARE: I took you to the last passage ‑ ‑ ‑

GORDON J: I see.

MR HOARE: ‑ ‑ ‑ which is so if you accept the interpretation, but above that there is the qualification which the “assault is bodily harm” to prove the case against Mr Rewha, which is:

because he is semi‑conscious if not unconscious.

So, there is an acceptance of unconsciousness but for the purpose of demonstrating “assault occasioning bodily harm” and not a more serious offence, or a more serious result, I should say. I would just say, lastly, and I have said it in slightly different ways on slightly different occasions before the Court, is that it was not correct to say that there was no material effect of what is said to be a misdirection because the evidence of the assault appeared elsewhere in the evidence by reference to the blood splatter, the cleaning up and those other aspects of the evidence.

It is said that that was evidence of an assault and evidence of an assault against the deceased, but there was no evidence in the evidence of Ms Greer that it was an assault of such a nature that it would constitute a grave assault.

GLEESON J: Is not what Mr Walters said at 152 accurate:

don’t leave your common sense at the door on how this all started, because you know Michael McCabe was sitting in the chair that had all his blood soaked into it –

MR HOARE: I know, but in the absence of those other pieces of evidence, which I was addressing Justice Steward on, there is an assault which is sufficient to incapacitate, to force him into the boot of a car, but in the absence of the evidence of Greer, it was insufficient to demonstrate that aspect of the defence case, and a critical aspect of the defence case, that it was a grave assault, at that point, at the apartment, in the absence of Mr Huxley. So, it in fact has the effect of bolstering the Crown case because it leaves evidence of an assault with unnamed, or unknown, assailants. Blood in a vehicle, which is associated with Mr Huxley ‑ ‑ ‑

GLEESON J: When you say “unnamed assailants”, the trial judge said in the summing‑up that there was no evidence that Mr Huxley was present.

MR HOARE: Yes, that is what I mean, but you then have other evidence, which is blood within the vehicle, which Mr Huxley is strongly associated with. A direct question was asked of Officer Griffiths whether it is possible to tell whether the deceased was alive or dead within the boot of the vehicle, and she responded positively she simply did not have the information to do that. So, there was no evidence which would assist the appellant in that way from Griffiths, in respect of the thesis that he had been killed before being put in the boot – or gravely injured, before being put into the boot of the car.

There then is the transit north and the body discovered but there is not that critical piece of evidence which advances, so that advances the Crown case. But the critical evidence which was necessary for the thesis put before the jury by the appellant was gone – well, given a barrier to its consideration by the jury because of the direction which was given. If I can just have a moment. Unless I can assist the Court further.

STEWARD J: I have one more question.

MR HOARE: Of course, I am sorry.

STEWARD J: I am so sorry. What do you want to say about the fact that, before the Court of Appeal, there were five grounds of appeal? The fifth one being the one you pursue today, and the concession made by counsel for Mr Huxley there that that ground would not itself be sufficient unfairness to amount to a miscarriage.

MR HOARE: If it is necessary to do so, that – I will go to the transcript – I hope I have the transcript of what occurred before the Court of Appeal ‑ ‑ ‑

STEWARD J: You say that was a misunderstanding ‑ ‑ ‑ ‑

MR HOARE: The concession was not made in such terms, no ‑ ‑ ‑

STEWARD J: It is a misdescription ‑ ‑ ‑

MR HOARE: It is a misdescription of what was said in argument by counsel for the appellant.

STEWARD J: When you get a moment, perhaps in your reply, just give me the reference.

MR HOARE: I shall. Yes, it may be in another book which is not before the Court, but I will identify the passage and I will provide it to my friends before I refer it to the Court.

STEWARD J: Thank you.

GAGELER J: Does that complete your submissions, Mr Hoare?

MR HOARE: I am sorry. Yes, it does. I apologise.

GAGELER J: Thank you very much. Mr Wallis.

MR WALLIS: Thank you, your Honours. We submit that the task confronting the Court on this appeal is not constrained in the way in which the appellant here advances. It is not constrained by a focus on the simple words or language that was used in the impugned direction. In fact, to do so would divorce it of its proper context and, in light of the limitations, attendant on the review of the record itself.

Can I pause to just say at that juncture that, so far as the relevant direction is concerned, we submit that it does not, in fact, commence at line 21 of page 30 of the core appeal book. It commences before that, and specifically at line 19. I will move to the reason for that in a moment, but, ultimately, we submit that the focus must be more broad than just drilling down precisely on exactly what was said. As a consequence, the Court would assess the direction not only by reference to it alone but would assess it as part of the overall context in which it was given at the time that it was given, and also by reference to the remainder of the summing‑up.

Framing the assessment in that way, we submit that neither the direction itself, on a strict reading of it, nor the way in which it came to be understood throughout the delivery of the entirety of the summing‑up, was capable of creating the risk the appellant here contends.

GAGELER J: Do you contend that it was correct in law, when read in context?

MR WALLIS: No, we do not contend that it is correct in law, but we submit that the way in which it is being interpreted by the appellant just is not made out. If it is made out in the way that the appellant contends, that it was to limit the use to be made of Ms Greer’s evidence in the case for the appellant, then it was an error of law. Of course, the way in which the ground is being framed is one of miscarriage, so we have addressed the question of miscarriage by reference to a line of authorities particularly from Mraz and through Weiss and up until Hofer.

GAGELER J: If it is understood as a wrong decision on the question of law, what would you say?

MR WALLIS: That is the end of the matter and there should be a retrial.

GAGELER J: All right.

MR WALLIS: If there was an error of law, because the primary focus that the respondent submits, so far as the way in which the ground is framed, that is, a miscarriage, is that it was not capable of affecting the verdict. But if it were an error of law it has to have been one of some substantiality and therefore it must warrant a retrial, and we do not advance in any way that the proviso has application in this case. Once the Court answers the antecedent question, so far as miscarriage, then we do not get any further.

I intend to deal, as I hope we have done so far as our written outline – it is a cascading line of submissions that we make. First, a review of the direction itself does not lend itself to the way in which has been advanced, but if it does then, contextually, whatever failing has been constituted has been otherwise corrected, and having regard to what this Court has said in Hargraves, one must consider the entirety of the context. And the relevant question, perhaps so far as a misdirection is concerned, is whether the jury were diverted from the task that was confronting them. Then we deal with the question of miscarriage, and we submit that, so far as that point, a miscarriage has not been occasioned.

Can I deal, firstly, with the first tranche of submissions that we have, that is, the direction itself. I started this by making reference to the direction ultimately commencing at page 30, line 19. Perhaps one needs to back away from that a little bit, and it starts, the previous page, page 29, at line 18. That is a point where his Honour had just given a direction to the jury that it was a matter for the jury as to how they might assess the witness’ evidence, whether they were reliable, and what weight, if any, could be given to the evidence.

What followed were then some observations, as the court styled them, with respect to how those features might affect the reliability of the witnesses, and they were styled as special matters. Page 30, line 1, his Honour said it was entirely a matter for the jury how they were to assess the witnesses. There was a reference to the way in which Ms Greer gave her evidence, and then at the end of that paragraph, at line 7:

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.

At that point in time, what his Honour was doing, we submit, was to identify to the jury ways in which the jury, as a matter of law, should come to assess those special features attendant, particularly, and particularly in light of the way in which this appeal is litigated, on Ms Greer. It was not at that point an observation on how the jury might act upon the evidence. We draw a significant distinction between the language employed by his Honour as between to accept the evidence or to act upon, or use, in the case against the respective defendants.

In fact, the words “act upon” creeps into the direction at line 19 of page 30. We submit that that made abundantly clear to the jury at that particular time, framed in the way that his Honour had already framed the case, that it was a matter that the prosecution had to establish guilt beyond a reasonable doubt. In that context, by submitting or by instructing the jury “you should only act upon her evidence”, that can only be understood, and could only have been understood by the jury that they have to be satisfied beyond a reasonable doubt of Ms Greer’s evidence, or the truthfulness, accuracy, and reliability of her evidence beyond reasonable doubt, in order to convict Mr Rewha.

That is so because not only is the language to “act upon”, but it is also, when one continues down to at about line 22, there is the specific reference to “the case against Mr Rewha”. There is no reference at that point with respect to the appellant. In fact, that direction is actually mirrored again over the page, at page 31, starting at line 4.

This is so far as the essential nature of Mr Hess’ evidence in supporting a conclusion as to guilt for the appellant. His Honour has, at that point, at the start of a lengthy summing‑up, identified for the jury that there are two key players so far as pathway to conviction, in this case, is concerned. To convict Mr Rewha, it was essential to be satisfied beyond reasonable doubt of the truthfulness, accuracy, and reliability of Ms Greer. That was not a complete answer to his guilt, because accessorial liability was the real issue, and where the parties took you to in the trial. So far as the appellant was concerned, it turned upon the evidence of Mr Hess, and satisfaction of his evidence. His Honour again used, at line 11:

you should only act upon his evidence if, after considering it with the warning I have given in mind, and all the other evidence, that you are convinced beyond reasonable doubt –

We submit that the way in which one comes to review the actual direction in that more limited of context demonstrates that what his Honour was directing the jury is in order to use Ms Greer’s evidence in a step towards conviction, they have to be satisfied, but his Honour did not say in any way, expressly or implicitly, that the jury had to be so satisfied before they could use it in the case for the appellant.

There is a significant distinction, and that language is employed throughout the entirety of the summing‑up. If the Court does not agree with us on that interpretation, then we submit that an even broader focus might attend the assessment of context. Of course, the summing‑up itself spanned over two days, a total of six hours. The direction itself came the afternoon of the first day of the summing‑up. The first part of the summing‑up went for about 15 minutes, and then the luncheon adjournment, and then there were two hours that his Honour continued to direct.

It was about in the middle of that, in the transcript, that this direction was given. The jury were, of course, sent home for the night, and they returned the next day. They were further instructed for the remainder of that second day. The appellant’s argument and the concession made here is that the only time that this wrong direction was given is at this point has to be understood in the context of the hours of directions that followed. If it was open to the jury to interpret the approach to Ms Greer’s evidence in the way advanced, then his Honour corrected that a number of times that followed by the repeated reference to his observations about the case against.

It is perhaps to be noted that there were at least 30 times that his Honour used the language “case against”, and it is almost a lineball between the two, the case against Mr Rewha and the case against the appellant. The adoption of that language focused the jury’s attention, we submit, as one continues through. What his Honour also directed the jury – importantly, we say – is the essentiality of circumstantial evidence, that is, how the jury had to exclude all inferences consistent with innocence, or all reasonable inferences consistent with innocence before they could convict the appellant of the offence. One of those reasonable inferences that was presented – because there were a number, one of those reasonable inferences that were presented was the assault at the Burnda Street unit.

It is to be noted that the appellant’s trial counsel did not place any particular reliance on the evidence of Ms Greer. His closing remarks really focused significant attention on the objective evidence itself. That is to be found at page 152 of the respondent’s book of further materials, line 31 – I am sorry, your Honour, 152, line 31.

Learned counsel at that point made reference to the inferences to be drawn so far as the degree of the assault, because that is, really, where the broad battlelines were drawn. It is not whether there was an assault at the Burnda Street unit; it was the degree to which the deceased was subject to assault and whether that assault had the capacity to be fatal, or more particularly, whether the Crown could exclude the possibility that it was fatal. What we had hoped to do was take your Honours through some parts of the summing‑up to make good our observations about the broader context, and how the direction would have been understood.

JAGOT J: Just before you do that, the answer you gave previously to Justice Gageler about error of law, does that mean that of your written submissions, paragraph 5 on page 2, and paragraph 56, maybe to the end, are not – you do not say they are part of your case now?

MR WALLIS: Well, no. We still submit, because the ground still remains miscarriage, that the error of law is a distinct ground. On the establishment of error of law, then it falls upon the respondent to establish the proviso, and we simply cannot establish that.

JAGOT J: And you do not.

MR WALLIS: But what we say is, if the ground is limited to the question of miscarriage informed by misdirection, then ultimately there is no miscarriage.

GAGELER J: Are you at all embarrassed in the presentation of your argument if the ground is understood as relying on an error of law?

MR WALLIS: We are not. We addressed the ground as it was advanced, and so there is a large body of the respondent’s submissions that addresses that ground itself. If the ground does shift then much of the respondent’s submissions are simply irrelevant. But, as it stands presently, we submit that the ground remains. If the Court engages in the assessment of miscarriage, then they still are important, but they are not important in the question of error of law, certainly in this case, anyway. To deal with the ‑ ‑ ‑

GAGELER J: If we are dealing with the context of the direction to understand whether or not it embodies a wrong decision on the question of law, what do you say about the exchange between the trial judge and counsel which fed into this formulation? We were taken to it in the appellant’s supplementary book of further materials. What part does that play in the context?

MR WALLIS: Well, in my submission, it plays a significant part – or in our submission, it plays a significant part for this reason. What my learned friend took your Honours to in particular was found at page 16 of the appellant’s supplementary book of further materials. We fix upon what his Honour said at page 17, however. The top of page 17 – what your Honours will see is the language that creeps in there as well, is against:

the jury can’t be told to have it both ways. To use it, if satisfied, on the balance of probabilities against A and B, but to only use it against C on – beyond reasonable doubt –

So, his Honour was framing it again to the parties in the context of using the evidence as a pathway towards conviction. What we submit is that is clearly the intention of his Honour, when his Honour gave that indication. That continued through his Honour’s ruling that is in the core appeal book, where his Honour was called upon to rule on the question of mistrial, and his Honour considered that one of the ways in which the prejudice occasioned could be cured was by the direction, but again permeates the using against.

Then, when one comes to consider the progression of the summing‑up itself, there are multiple opportunities for request for redirection. Of course, the appellant’s counsel at trial did not submit that a particular direction was necessary, it was just that the direction intended or contemplated, at least in argument, was highly prejudicial, those were the words used. But an intention has to be understood in the context of what follows, in our respectful submission. And at the conclusion of the summing‑up, it must have been understood by all parties that the direction did not have what was thought to be the prejudicial capacity that was originally raised.

Whilst it was said in reply to our submissions that no redirection was sought because a ruling had already been made, that perhaps put too fine a point on it. His Honour had indicated what he intended to direct. There was a misunderstanding, we submit, about the breadth of that direction and once the direction was given, followed by the other four chapters of the summing‑up, the appellant’s counsel must have understood at that time that it did not have that prejudice and did not seek a redirection.

That is an observation that has been made often by this Court of the absence of redirection. Of course, we accept that that is not necessarily determinative of the issue, but it colours and flavours what was transpiring within the courtroom itself. Whether the parties perceived the prejudice that is advanced is, perhaps, in no small part answered by the fact that there were redirections sought on other matters – there was contest so far as other matters, but no redirection sought so far as this particular matter. That is the context in which we place the argument, and really, we say, it is a misunderstanding.

So far as the summing‑up is concerned, and I do not intend to insult your Honours by reading slabs of the summing‑up, can I make some observations, and passing observations. One progresses through because there are a number of features that touch upon, in our submission, the context. It starts, we submit, at page 18 of the core appeal book, where the jury were told at line 27:

You are to determine the facts of the case based on the evidence placed before you –

That was almost the immediate direction given to the jury about the task that they had compared with the task that his Honour had. Again, later on, at line 35 that the jury were:

the sole judges of the facts.

and importantly, we submit, over the page, at page 19, line 32:

general disbelief of a witness’s evidence does not provide evidence of the opposite.

That was important in the context of this case, and that, of course, is what the Court of Appeal reflected upon, that if the jury accepted the evidence of Ms Greer the appellant was not in the unit; if the jury rejected the evidence of Ms Greer, there is no evidence the appellant was in the unit. It had the same effect, and his Honour framed the propositions in that way. At page 23, we submit, line 19, this is the narration and the short‑form summary of the prosecution case. Again, the language the “case against” the appellant:

rests upon the confessional statement of Mr Hess.

Later on, at about line 22:

That evidence is the only direct evidence in this case that supports the Prosecution case against Mr Huxley.

Again, the use of language supporting the case, a pathway towards conviction. At page 24, line 20, we submit that where his Honour directed the jury:

In differing ways the case against each defendant relies or involves circumstantial evidence.

His Honour then addresses the case against Mr Rewha, and says at:

the heart of the case against him is the evidence of Ms Greer –

It is then the essentiality, the fundamental step in a pathway towards conviction for Mr Rewha was the acceptance of Ms Greer. That is framed, again, early in the summing‑up – we submit, importantly – at page 24 line 43, where his Honour says:

If there is any reasonable possibility consistent with innocence it is your duty to find the accused, whichever one it may be that you are considering in context, not guilty.

Again, at page 25, line 3, it was noted that it was a matter for the jury as the judges of the facts. At page 26, line 39, it was a matter for the jury as to what weight they gave to the evidence. Again, this is the fundamental feature, we submit, of importance. The observations as to how the jury would come to assess the evidence of Ms Greer distinct from, once they undertook that assessment, how they would and could use that evidence in support of the conviction. That was the limitation attended on Ms Greer’s evidence, and only in relation to Mr Rewha’s case, not the appellant’s. I have taken your Honours to page 29 and page 30, which includes the impugned direction, and the context attended on that, and 31.

His Honour made passing reference at page 31 line 25 to the evidence of Mr Hess, that the jury could not use the evidence of Mr Hess, in some way, against Ms Doyle. Again, his Honour is giving these observations that there is certain evidence, and a certain quality of evidence, that can be used in certain ways; attends different cases. That is always a complexity that arises in conjoined trials, and his Honour made that clear, and his Honour summarised that right at the end of the directions which we will come to.

His Honour them embarked upon an important summary of all of the evidence. Ms Greer’s evidence was summarised at pages 38 through 41, and Mr Hess at page 45 through 47. The court adjourned for the day, and over the evening no redirections at that time were sought. So, we get in that frame the nature of the actual direction understood at that point. At page 67, his Honour returns to an assessment of the way in which the jury would approach their task. That is at line 36, starting with:

I now want to turn to consider the different offences –

and at line 41:

I am going to give directions down the indictment; that is, deal with the case concerning Mr Rewha first –

and then the appellant. Again, the observation we make is separate cases. That, again, features at page 68, line 5, and lines 11 through to 22. Importantly, we submit, at page 68, line – it perhaps starts at line 11, that whole paragraph, where it said the only evidence Ms Greer – Ms Greer is the only evidence in the case against Mr Rewha.

GORDON J: Sorry, where are you reading? At the top of page 11, on 68?

MR WALLIS: It is page 68, from line 11 – that whole paragraph being a reference to the need to:

be satisfied beyond reasonable doubt . . . before you can find Mr Rewha guilty –

GAGELER J: Just so I understand the purpose of taking us through this, it is to say, at the end of the day, that what appears at page 30, line 23, or so, would have been understood by the jury to refer only to the case against Mr Rewha.

MR WALLIS: Yes, that is correct. Even if at time that it was given. So, the primary submission is that at the time it was given it could not be understood in any other way, but even if it was capable of that misunderstanding then what flows converted it to a proper understanding that to use the evidence against Mr Rewha required satisfaction beyond reasonable doubt, but that same direction, as a matter of law, did not permeate the case against the appellant.

GAGELER J: If it is not understood that way, but also directed to the case against the appellant, then do you accept that it was simply wrong as a matter of law?

MR WALLIS: It is. It would be a fundamental shift in the criminal law to require a witness’ evidence to be established beyond a reasonable doubt; the truth on its accuracy and reliability before it could be used as a pathway towards acquittal. I do not stand before this Court inviting the Court to engage or embark upon such a fundamental change.

GLEESON J: I just want to make sure I understood that. If you are not saying that if there was an error law, at page 30 of the summing‑up, it is pens down, because you are saying that there is a contextual question about what else was said that would lead to an understanding that Ms Greer’s evidence could be relied on in the defence case.

MR WALLIS: Yes, and I have been unclear on that. The error of law is, at the end of the day, after the full assessment of what was said, if it still left the impression that the jury had to be satisfied beyond reasonable doubt of Mr Greer’s evidence before they could use it in support of acquittal for the appellant, then that is a wrong direction on a question of law. It is not just simply pens down at that one direction, it is the totality of it, and that is informed by the observations of this Court in a number of authorities that we have referred to; Hargraves and Stoten and, also, as your Honour, Justice Steward mentioned and referred to in the judgment of Awad.

GAGELER J: Mr Wallis, given that we have interrupted you, it is customary for us to take a morning adjournment for 15 minutes. If that is convenient, we will do that now.

MR WALLIS: Thank you.

AT 11.08 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.18 AM:

MR WALLIS: I have, perhaps, made the point that I intended to make so far as the separation or distinction between case against and the use to be made of the evidence, other than to identify a particular feature that the respondent fixes upon. That is at page 81 of the summing‑up, where his Honour articulated seven particular features that the jury were required to be satisfied of beyond a reasonable doubt before they could convict the appellant.

After articulating those seven matters, his Honour made abundantly clear that if the jury were not satisfied beyond reasonable doubt of any of those matters, they were duty‑bound to acquit. It is the fifth matter in those seven that was of particular importance; that is, that the appellant did an act that inflicted the injury that caused the death of the deceased. That was touched upon again over the page, where his Honour framed it in this way. About line 13:

It is a circumstantial case, even if you assume for the moment, that it’s a true account because you then have to be able to connect the dots with the evidence that that act caused the injuries that caused the death –

This is by reference to Mr Hess, importantly:

and not some other event. And you have to be satisfied of all that, beyond reasonable doubt.

So, we submit that what his Honour there did made clear the importance of Ms Greer’s evidence in the case for the appellant. That is, it provided an obstacle in the pathway to conviction that had to be overcome beyond reasonable doubt. That, then, features again at page 83 where his Honour refers to the possibility that the injuries were caused in the assault that Greer speaks of.

GORDON J: This is lines 14 to 16?

MR WALLIS: Yes. Of course, some of the other features that were posited in address, and more particularly throughout the evidence, was because of the state the body of the deceased was found. One could not categorically say how he had met his demise. There was methamphetamine that had been found; it was at legal levels. Professor Duflou identified or postulated some hypotheticals because of the absence of skin. One could not categorically say that there had not been some sort of stab wound or something like that. There were a milieu of features because of the state of decomposition that had to be considered by the jury but, at all times, the particular matter fixed upon by the appellant, in no small part, was the assault at the Burnda Street unit.

It was always said that it was a serious assault. All parties – all three defendants and the Crown – all advanced their case on the basis that there was an assault at the Burnda Street unit. Where there was some degree of divergence was the nature and intensity of that assault. Ms Greer’s evidence, we say, did not aid in an evaluation of the degree of that assault, though. That is why we have advanced the miscarriage point in the way that we have.

I said before the adjournment, or shortly after I commenced, that his Honour instructed the jury towards the end of the summing‑up as to the separate considerations of charges. That is to be found at – or separate consideration of the accused, I am sorry. That is to be found at page 97 from line 19, again framing the way in which the jury were to make their way towards conviction.

GORDON J: Is this the last afternoon?

MR WALLIS: Yes. His Honour also, we submit, put some context around Ms Greer’s evidence as well, at page 101, at line 20. These were observations by the learned trial judge as to the objective evidence that was found in the unit by reference to the evidence that Ms Greer actually gave as to what she saw and what she heard.

What was abundantly clear is that even if Ms Greer’s evidence were able to be acted upon by the jury, she did not see or necessarily hear the full extent of what had occurred inside. His Honour identified that it was a “dynamic” situation, and it had to be so, because on Ms Greer’s evidence at the time that she entered the unit, the deceased was on the floor. At no time did she remark upon the deceased being placed on the couch, or on the lounge, but there was a body of evidence that touched upon some blood soakage onto the lounge.

The experts were asked about that, and importantly, Professor Duflou gave some evidence where he attached some degree of significance on the soakage in the lounge. As a general proposition it was perhaps was not a statement of expert opinion, but ultimately, that soakage to that level to be seen on the couch was likely to be significant. That was in the context of the evidence that he was also giving in relation to the bloodletting from the face or nose that Ms Greer spoke about. His evidence was emphatically that it was difficult to identify the significance of that degree of blood. It was articulated as the size of a palm with outstretched hands, and he thought that that was not a significant bloodletting event – it was insignificant, in his opinion – it was, more particularly, the focus on the lounge and the soakage.

That is why his Honour, in identifying the eight different locations at which the deceased’s DNA was located within the kitchen and unit itself, along with the soakage, came to identify that the assault was perhaps, and more than just perhaps, definitely greater than what Ms Greer had seen.

STEWARD J: Were you going to say anything about the last paragraph on page 98 of the core appeal book? The reason I say that is because I think this is the only occasion where the judge refers to Ms Greer’s evidence being used against Mr Huxley.

MR WALLIS: Yes, that is right. That is the only point that I have identified, and it is said to be part of the narrative. It is limited to being a narrative in the case against the appellant, which explains the presence of the blood, and maybe some part of the evidence explaining the circumstances of the blood in the blue Commodore.

Again, this is a situation where we are now focusing on the case against the appellant. His Honour does not repeat the type of direction given at page 30. This was distinct. It is now narrative evidence framed by reference to the circumstantial case, and the requirement to be able to exclude beyond reasonable doubt any other possibility – or reasonable possibility. That is a principal point of what his Honour says, and the only time that he attaches the significance of Ms Greer’s evidence to the case involving the appellant other than those more nuanced references in terms of how the appellant’s case was ultimately framed.

So, the totality of the summing‑up, we submit, lends support to our argument that, in context, the directions could only be understood in the way we submit; that is, the requirement to be satisfied beyond reasonable doubt that Ms Greer attended only the consideration of Ms Rewha’s case, and did not so attend the appellant’s case.

That is informed as well not just by what was said but the duration over which it was said and the absence of the redirections. As the matter has progressed and framed in a different way the error of law, perhaps what I am about to observe do not occupy any great importance, but I will make some passing observations to the question of miscarriage, and the consequences if the jury did come to understand the direction to be that advanced by the appellant; that is, that it could not be used to acquit Mr Huxley unless proof beyond reasonable doubt was established.

We submit that Ms Greer’s evidence did not aid the case for the appellant. In fact, it operated against the appellant’s case. If faced with the binary choice that has been styled by our learned friends – that is, accept or reject there is no middle ground – ultimately, on a rejection of Ms Greer’s evidence, the objective features still remained. That is, that there was blood in the unit of sufficient quantity to soak into a lounge at a time where there was no evidence that the appellant was in the unit, the nature and circumstances of that event could not be known other than it had to be something significant enough to yield blood loss from the deceased in those two different locations, and to lead, inferentially, to his expiration of blood whilst in the boot.

There are the photographs that have been placed before this Court and the evidence of the scientific officer who could not categorically state that it was from the expiration – the coughing of blood; could have been arterial, but did not favour that. The inference was unassailable, though – that, placed within the boot, there is blood in a manner consistent with it having been coughed.

So, if the jury were faced with that binary choice and could not be satisfied beyond reasonable doubt of Ms Greer’s evidence, and so put it to one side, and we submit that the result in Mr Rewha’s case is not determinative of that feature because the case it litigated and Mr Rewha’s case was not necessarily on Ms Greer, but so far as accessorial liability. So, they still could have accepted beyond reasonable doubt Ms Greer’s evidence, but still not been satisfied beyond reasonable doubt of the guilt of the accused. His Honour made that clear.

We submit that, when one has regard to the binary approach, if the jury could not act upon Ms Greer’s evidence, they were still confronted with the very real possibility of an assault of an unknown nature that resulted in bloodletting over two different locations that had to have been serious in the context of the evidence from the doctors, the pathologist and Professor Duflou as to the injuries to the arm, the ribs and the head.

So, at all times, the jury had to grapple with the possibility that the deceased died in some way other than alleged by the prosecution against the appellant. They had to exclude methylamphetamine intoxication to a lethal point, they had to exclude those hypotheticals, speculative scenarios by Professor Duflou, and they had to exclude whatever happened in the Burnda Street unit.

When one considers, though, Ms Greer’s evidence – and some focus is required on it, but, ultimately, the totality of her evidence revealed that she was outside of the unit itself. She heard a thud, or a thump, or some noise from within, came inside and saw the deceased on the ground. She was specifically asked whether she had seen any injuries to the deceased and her response was, I saw him bleeding. That was the extent of her evidence so far as the nature of the injury, and that is at page 47, line 16 of the appellant’s book of further materials. The question was:

Do you remember if you could see any injuries or anything like that to him?

Answer:

I could see, like, blood coming from his facial area. Yeah.

And one might immediately say, well, if there was blood, there must have been an injury, but that is not necessarily so, because the evidence of Dr Samarasinghe was that a person was capable of losing blood from the mouth and nose if they had suffered a kick to the stomach or rib area. And the evidence that we have, or had, was that the deceased had suffered some rib fractures. So, it was not necessarily a fait accompli that bleeding from the face led to a particularly observable injury, we accept.

What Ms Greer did say was that there was a relatively small palm‑size amount of blood that the doctors did not consider in any way significant in the circumstances. And it was continuing to grow but only slightly, she said. Importantly, what she did say was that when she was in the unit and saw the deceased on the ground, he was still alive. He was coughing and spluttering, and trying to talk. With that evidence, in combination with what Dr Samarasinghe said – Dr Samarasinghe said at page 13, line 10 of the appellant book of materials, that the injury to the face and head was likely to result in unconsciousness relatively rapidly afterwards.

So, we submit that on an assessment of Ms Greer’s evidence, she presented a case disadvantageous to the appellant. So, if the jury were faced with the binary choice and did not act on her evidence because they could not satisfied beyond reasonable doubt of it, the appellant was in no worse position. In fact, he was perhaps arguably, we submit, in a more favourable position, because her evidence limited the extent of the assault, and of course what she did observe was there was a kick and a prod with what appeared to be something that looked like a television remote control.

So, the constellation of all of the features that Ms Greer gave in her evidence simply did not operate in favour of the appellant, and that is why we have answered the original ground so far as no miscarriage has resulted because, we submit, that the antecedent question – that is, whether the misdirection was capable of a practical injustice or prejudice, whichever way the articulation has been styled since the offside observations of Justice Fullager in Mraz, applies in Weiss, and continuing through, that are identified in our written outline of submissions, there is just simply no way that fairness to the trial had been impugned, and so there was no miscarriage.

If the Court concludes that a miscarriage was occasioned, if it proceeds on the original ground, we do not invite the Court to exercise the proviso because any capacity for that evidence to have operated negatively, or against, or prejudicially to the appellant, cannot be anything other than a substantial miscarriage, because the Court just simply could not embark upon the assessment of the fundamental step of the negative proposition that has been identified.

Unless there is any particular matter that has arisen, those are our respectful submissions.

GAGELER J: Thank you, Mr Wallis.

MR WALLIS: I am sorry, I have spoken to soon. My learned friend – a question was asked of my learned friend so far as the concession made in the Court of Appeal with respect to one of the grounds. We do not place any significance on that. The ground as it was styled in the Court of Appeal was different from the ground styled here. The error was that the judge had wrongly invited the jury to disregard Ms Greer’s evidence. They were, of course, capable of disregarding her evidence. What is put here is that the jury were not just told that they could disregard, but they should disregard. So, even if there were a concession, it does not place any significance on the question now attending this Court.

Thank you, your Honours.

GAGELER J: Thank you, Mr Wallis. Mr Hoare, do you have anything in reply?

MR HOARE: On that concession, I will, if the Court requires me to identify the transcript, but on that concession, I will not trouble the Court with it.

GAGELER J: No, no. We do not need to hear you on that.

MR HOARE: And if it was necessary to do so, and I had not done it clearly enough, then I do seek leave to amend the grounds of appeal to allege a specific error of law.

GAGELER J: Mr Wallis?

MR WALLIS: I have answered that ground, so I do not have any objection.

GAGELER J: Yes, you have that leave.

MR HOARE: Thank you.

GAGELER J: You should file a document that reflects it.

MR HOARE: I certainly shall, your Honour. The only other matter, which is to, by way of clarification – I made reference to evidence and it was raised by my friend as to the evidence given by Officer Griffiths as to the mechanism of the placement of the blood in the boot. That evidence can be found at the respondent’s further materials at page 133, commencing at about line 5 through to line 35, and it was in response to a question by his Honour. I otherwise have nothing further. Thank you.

GAGELER J: Thank you, Mr Hoare. The Court will reserve its decision in this matter and will adjourn until Wednesday 13 September at 10.00 am.

AT 11.38 AM THE MATTER WAS ADJOURNED