R v Taylor[2021] QCA 15

SUPREME COURT OF QUEENSLAND

1. [1]
   FRASER JA:  The appellant was found guilty by a jury of the murder of Michael James McCabe.  He has appealed against his conviction upon the ground that the verdict was unreasonable and upon other grounds contending that a miscarriage of justice resulted from the way in which the Crown case was left to the jury.
2. [2]
   The body of Mr McCabe was discovered about 70 kilometres from Townsville near a road at Mt Spec on 17 September 2015, soon after the appellant directed police to that place.  In police interviews, the appellant made many admissions upon which the Crown relied at his trial, including statements to the following effect about acts he said were done by others in his presence.  Mr Huxley and Mr Rewha violently assaulted Mr McCabe during the night of 15 August 2015 at a unit in Townsville, including by stamping on him and kicking him whilst he was on the floor.  Huxley and Rewha bound the injured and bleeding Mr McCabe.  They put him in the boot of Huxley’s car.  Huxley drove to Mt Spec with the appellant.  After Mr McCabe got out of the boot Huxley kicked him down a slope next to the road.  Huxley and the appellant then returned to the unit.  Huxley later drove his partner and the appellant back to Mt Spec.  They stopped on the way to buy a large quantity of what they believed to be bleach for Huxley to throw on Mr McCabe. After they arrived at the place where the appellant and Huxley had left Mr McCabe, Huxley clambered down to Mr McCabe, threw him further down the slope, and threw large boulder rocks on him.  Huxley then drove his partner and the appellant to Ingham.
3. [3]
   A pathologist, Dr Samarasinghe, gave evidence that the extensive decomposition of Mr McCabe’s body when it was found was consistent with Mr McCabe having died on approximately 15 August 2015.  Dr Samarasinghe could not determine the cause of death.  He referred to various bone fractures and expressed the opinion that if the fractures to the skull were inflicted while Mr McCabe was alive, the blow or blows that caused those fractures would have resulted in death either instantaneously or within a couple of hours.  Fractures to the ribs and in each of the two bones of one forearm were likely to have been caused by separate blows.
4. [4]
   The Crown case against the appellant was that he was guilty of murder either upon the basis that he did the act which constituted the offence (Criminal Code (Qld), s 7(1)(a)) or upon the basis that he did acts for the purpose of aiding another person to commit the offence (s 7(1)(b)) or he aided a person in committing the offence (s 7(1)(c)).
5. [5]
   The Crown case under s 7(1)(a) depended upon evidence given by a prisoner, Mr Davison, with whom the appellant shared a cell after he had been arrested, that in late September 2015 the appellant confessed that he killed Mr McCabe by throwing a rock on him when the appellant was with Huxley at Crystal Creek (which was a reference to Mt Spec).  Upon the Crown case, s 7(1)(b) or s 7(1)(c) applied to render the appellant guilty of murder if Mr McCabe’s death was instead caused by Rewha or Huxley stamping on or kicking on Mr McCabe whilst he was on the floor at the unit or by Huxley throwing rocks on Mr McCabe at Mt Spec.

Ground 1: The jury’s verdict was unreasonable

6. [6]
   Ground 1 raises the question whether, even if there is evidence capable in law of proving the charge of murder against the appellant it was not reasonably open on the whole of the evidence for the jury to be satisfied of the appellant’s guilt of murder beyond reasonable doubt.^[1]  In order to answer that question, it is necessary to conduct an independent examination of the evidence.^[2]  In conducting the necessary examination of the evidence, the Court must have regard to “the central place of the jury trial in the administration of criminal justice … and the abiding importance of the role of the jury as representative of the community”, as well as the advantage over the Court of Appeal a jury has in seeing and hearing the evidence as it unfolds at the trial.^[3]
7. [7]
   The appellant’s argument on appeal ground 1 has two limbs.  First, the appellant submits that the evidence of Davison should be excluded from consideration in the Crown case on the basis that the jury should have harboured a doubt about the truthfulness of his account, because of his long history of committing offences of dishonesty, what he stood to gain by giving a false account and the inherent implausibility in the appellant conveniently making the confession described by Davison.  The appellant submits that, given that the evidence demonstrated that Davison had made his living through dishonesty, it should not be accepted that this was a case in which “a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal”, such as to entitle the court to conclude that no miscarriage of justice had occurred.^[4]  Secondly, the appellant submits that it was not open to the jury to convict him without Davison’s evidence, either on the basis that he was a principal offender under s 7(1)(a) or that he was a participant in an offence committed by Huxley or Rewha under s 7(1)(b) or (c).
8. [8]
   Before discussing ground 1 it is useful to summarise the evidence that is most significant for that ground.

The police interviews

9. [9]
   The Crown case under s 7(1)(b) and s 7(1)(c) was very substantially, although not exclusively, based upon admissions the appellant made in the police interviews.  The appellant participated in five police interviews, on 18 August 2015, 16 September 2015, 17 September 2015, 18 September 2015, and 18 March 2016.  The first four interviews were video recorded and the interview of 18 March was audio recorded.  In the first interview, on 18 August, the appellant was questioned about a blue commodore (which I will refer to as “the car”) that had been reported stolen on 16 August and evaded police chases in Ingham.  The appellant told police that on 16 August Huxley was driving the car with his girlfriend as a passenger and collected the appellant from his home in Townsville.  They then drove to Ingham to visit Huxley’s family.  When the appellant was asked whether he was in the car during the police chases in Ingham he responded that he was in the back seat.  The appellant said that Huxley was driving and he was not in the car when the police chased Huxley in Townsville.
10. [10]
    In the second interview, on 16 September 2015, the appellant was questioned about the disappearance and suspected murder of Mr McCabe.  He told police that on 15 August he rang Huxley, who at an earlier time had told the appellant to ring him if he had nowhere to go.  The appellant later said that Huxley was “s’posed to be me brother”.^[5]  Huxley dropped everything and came to pick up the appellant.  Huxley collected him in the car and eventually took him to the unit at about nightfall.  They entered the unit through a door in the garage.  The appellant was left alone for some time.  He went into different rooms and out the back door where he saw a backyard.  He discovered that he could not open the front door.  When Huxley returned the appellant asked him about the front door and Huxley said there was no key for it.
11. [11]
    The appellant referred to other people arriving, including two men and two women the appellant said he did not know.  The men were Rewha and Mr McCabe and the women were or included Ms Greer (Rewha’s partner) and Ms Doyle (Huxley’s partner).  The appellant did not use their names in his police interviews but the identities of the people to whom he referred were established by other evidence.  I will use their names instead of the expressions used by the appellant to describe them.
12. [12]
    The appellant referred to having learned that Mr McCabe had been “crackin’ onto” Ms Greer.^[6]  Upon the appellant’s statements this was what caused Rewha to assault Mr McCabe.  The appellant said that Rewha repeatedly punched Mr McCabe in his face with no prior warning and Huxley then joined Rewha in attacking Mr McCabe.  The appellant referred to Rewha starting to fight Mr McCabe, after which Rewha and Huxley “smashed the fuck out of him”.^[7]
13. [13]
    In the appellant’s first and second descriptions of the attack upon Mr McCabe in his interview on 16 September^[8] he said nothing about any act done by him in connection with the attack or about what happened to Mr McCabe after Rewha and Huxley ended their attack.  The appellant referred to being driven to Ingham and later dropped off at someone’s place.  He gave vague directions and a vague description of a lowset brick home where he said he stayed with friends of Huxley who were using drugs.
14. [14]
    Later in the same interview the appellant admitted that he shut the back door during the assault by Rewha and Huxley upon Mr McCabe, “’cause I had the back door open”.  The appellant also admitted that he said he was “in” when asked by Huxley and Rewha if “ya fuckin’ out ya fuckin’ out cunt”.^[9]  In this interview, in which the appellant did not implicate himself in any violence against Mr McCabe, one reference to the quoted statement suggests the appellant made the statement during the attack upon Mr McCabe.^[10]  At another point the appellant said that Huxley was yelling “when it was goin’on … he’s sayin it to everybody” and “… I’m goin’ yeah I’m in”.^[11]  Soon afterwards the appellant said that it was after Rewha and Huxley “chucked” and “trapped” Mr McCabe in the boot and rolled up a mat and threw it in there that Huxley said “ya in or ya out”.^[12]  The appellant stated he “really wasn’t in” and he “did not want to be in there” and “didn’t know it was gonna happen”; he had only gone to the unit to sleep there.^[13]  The appellant subsequently attributed his agreement to being “in” to “you know brotherhood, brotherhood bro, brotherhood, ‘cause I was nervous”.^[14]
15. [15]
    After having referred to shutting the back door, the appellant said the back door went out to a yard that was “all closed off with a fence”.^[15]  The appellant added that, “you can’t get any further, like it was just fresh air”.^[16]  After a reference to the appellant shutting the back door after both Rewha and Huxley had hit and kicked Mr McCabe and dragged him onto the floor, the appellant referred to them “stampin’ all over him”.^[17]  Later the appellant described them kicking Mr McCabe like a soccer ball “Fuckin’ hard”^[18] and there being a lot of blood coming out of Mr McCabe’s nose and mouth. The appellant said Mr McCabe “probably would have had a broken jaw and a broken nose, that’s for sure, and probably a couple of ribs broken … [b]ut he was alive when they put him in the boot, I know that.”^[19]
16. [16]
    The appellant said that, after the attack upon Mr McCabe ended and the appellant was standing in the kitchen near the doorway, he saw Huxley and Rewha pick up Mr McCabe, carry him into the garage and put him in the boot of the car and put a rug in the boot with him.^[20]  The appellant denied having got into the car, he said that “them two went in that car”^[21] and drove away, and he denied knowing where Mr McCabe was.^[22]
17. [17]
    In the 17 September interview the appellant confirmed that shortly after the 16 September interview he had told police that he knew where Mr McCabe’s body was.  The appellant gave an account that he was in the car with Huxley and Doyle on a trip from Townsville to Ingham and, instead of going direct as he previously told police, Huxley turned off on the road to Crystal Creek.  According to the appellant, Huxley explained that he wanted to see if Mr McCabe had got onto the road or not.  Huxley drove up to a point where he turned around a corner and came back to pull up where the spot was.  The appellant said he remained in the car while Huxley got out of the car, had a look over, could not see anything, and got back in the car and drove off to Ingham.  The appellant said he thought that was where the body was, he saw no body, but Huxley was checking to see if the body had gone back up again.  Mr McCabe must have been alive when all that was happening.  The appellant said that when Huxley jumped out and looked over “the balcony” he must have had a torch, a little black one, but the appellant didn’t really remember that; they had the lights shining and the appellant could not see anything.^[23]  (In the 18 September interview the appellant gestured and referred to the torch as a “little black one” that was fluorescent.^[24])  Huxley had positioned the car so that the headlights were directed over the side of the road but the lights illuminated only the bush and tops of trees and “[Y]ou couldn’t see fuck all because it’s dark, the lights weren’t that crash hot”.^[25]  When Huxley got back in the car he said that he could not see the guy or something like that.  The appellant said this change to his version of events was the only thing that was different from what he had previously said.
18. [18]
    In the 18 September interview the appellant said he saw Rewha sit next to Mr McCabe on the lounge, put his arm around him and then start belting him.  As Mr McCabe tried to get up Huxley started to hit him.  Mr McCabe “was trying to get through so I … hit him as he was coming over my way”.  The appellant’s immediate explanation for doing so was, “because I was standing at that end of the counter kind of thing, wondering what was going on and you know what I mean like didn’t know to stop it or not, I didn’t know what to do like …”.^[26]  The appellant also said he hit and pushed Mr McCabe in that way because he was scared of Mr McCabe coming towards him.
19. [19]
    The appellant said that, after Rewha and Huxley had been hitting Mr McCabe at the lounge and the appellant was at the counter, Mr McCabe “come at me I could see his face, but I thought he was like he was bleeding”.  After Huxley subsequently hit Mr McCabe four times, Mr McCabe went down to the ground but he jumped back up, “and then … as he got through he got hit and then he come to me and I hit him and he went back that way … [a]nd … they hit him in the back of the head, he fell on the ground and they started stamping the fuck out of him”.^[27]
20. [20]
    The appellant added that he thought Huxley had told him to grab Mr McCabe, but instead of grabbing him, the appellant hit Mr McCabe probably twice and pushed him back; he hit him in the face with a left and a right in the jaw at a time when Mr McCabe was “freaking out” and “scared”.^[28]  Mr McCabe then did not have anything in his hands, the appellant could see that his face was “Just smashed like been hit” and “There was heaps of blood” on Mr McCabe’s face at the time when the appellant hit him and pushed him.^[29]  When Mr McCabe was moving towards the appellant, Rewha and Huxley were “Coming behind him, gonna belt him”, they were looking at the appellant and Huxley said “grab him, grab him”, and the appellant hit him because he did not want to grab him.^[30]
21. [21]
    The appellant said that after he hit and pushed Mr McCabe, Mr McCabe “ended up walking backwards … Because of the shock” and he then “got hit in the back of the head … [a]nd fell to the ground”.^[31]  After Mr McCabe had gone back to where Huxley and Rewha were standing, they “were kicking the shit out of him” whilst he was lying on the ground.  They were “walking around him, all over him”, kicking him “like a soccer ball … Gonna go for a gold yeah”.^[32]
22. [22]
    When the appellant was asked whether he saw any injuries on Mr McCabe he responded, “Just the blood I didn’t see anything … That was broken or anything like that, I just saw blood but … the amount of hits and that he got, he could’ve probably got broken ribs and broken arm or some … I don’t know like …”.^[33]
23. [23]
    The appellant described Huxley as getting angry all round and asking “where we’re gonna drop him off” after they had “already put him in the boot”.^[34]  The appellant said that Huxley got zip ties to wrap around Mr McCabe’s arms and legs.  The appellant said he did not know at the time why Huxley and Rewha put zip ties on Mr McCabe’s hands and feet, “but like talking about it now maybe so he didn’t move or get up”.^[35]  When asked whether Huxley and Rewha said anything to Mr McCabe while they were zip tying him, the appellant said they didn’t but were “just angry”.^[36]  After they had put the zip ties on Mr McCabe, Mr McCabe “just laid there”, and the appellant opened the boot up when he was told to do so.^[37]
24. [24]
    The appellant said that at this point Rewha and Huxley took the zip ties off Mr McCabe, carried him, and put him in the boot.  Mr McCabe was zip tied for about 20 minutes whilst Huxley and Rewha were walking about.  The appellant just stood on one spot wondering what he should be doing.  The appellant was swearing to himself, “what am I supposed to be doing you know like and then clicked when he’s said to me, are you in or are you out, … I had to say in otherwise I’d be lying on that floor with old matey in the boot”.^[38]
25. [25]
    When asked what the girls were doing at that stage, the appellant said he didn’t know, he remembered seeing them outside, and then the next minute no one was there as they were all cleaning.  The appellant thought they were cleaning fingerprints more than cleaning up the blood.  Everybody was doing it.  The appellant got on the floor and cleaned up a bit of blood with a chux.  He thought the chux went into a bag.  It was Huxley’s idea to start cleaning.  The appellant and Rewha just automatically started cleaning.
26. [26]
    The appellant went on to say Huxley told him where they were going.  The appellant knew the area from a much earlier time when he had been there with his family and a friend.  Photographs and police evidence of the place where the body was found establish that it was steep and treed.  The ground was strewn with boulders and rocks of varying sizes and shapes.  The area appears rugged and desolate.  It must have been very dark; it was formally admitted at the trial that the moon entered its new phase only on the day before, on 14 August 2015, and it appears from the admissions that in any event the moon must have set before the car arrived.
27. [27]
    According to the appellant, Huxley said that they were going to just “dump him up … the road up here and … we’ll leave him there and he’ll be right for tomorrow” and the appellant responded “yeah alright, we’ll do that”.  The appellant said that he agreed because “I could’ve been with [Mr McCabe]”.^[39]
28. [28]
    The appellant said that when the car pulled over, Huxley used the key to open the boot.  The appellant said that he had intended to get Mr McCabe out of the boot “so he could be safe” and to “Get him out of this shit situation”.^[40]  When the boot came up the appellant saw Mr McCabe lying in the boot.  Mr McCabe practically came out of the boot himself, straightening up at the time when Huxley and the appellant each gave him a hand.  When Mr McCabe was standing, Huxley kicked him in the stomach and he went backwards down the hill.  There was a drop-off at that point.  The appellant said he looked down the hill and saw Mr McCabe “moaning and groaning … He was alive”.^[41]  They then drove back to the unit and were cleaning it up.  The appellant said he thought “it might’ve got a bit cleaned up before … we went, if I remember”.^[42]  He thought Mr McCabe was in the boot when the cleaning up was happening.
29. [29]
    After having returned to the unit, Huxley drove both Doyle and the appellant back to where Mr McCabe had been left by Huxley and the appellant.  The appellant told police that he asked Huxley what they were doing and Huxley responded that he was just going back to see if Mr McCabe was alright and to see if he was on the road.  Later in the same interview the appellant told police that Huxley “wanted to go and get some bleach to throw over [Mr McCabe]”; the appellant said that he told Huxley not to but “we all went in and bought the bleach from the servo”.^[43]  The appellant said he had to go in and help and couldn’t stay in the car by himself because Huxley would not let him.  The appellant said “we had to go in and find something that was going to [be] put on top of him”.^[44]  The appellant carried out to the car what he described as a 20-litre bottle of bleach and put it in the boot.  (It was admitted that on 16 August 2015 a 20-litre container of “AdBlue” was sold at an identified service station on the Bruce Highway at Yabulu.)  The appellant then added that Huxley did not say that he was going to put the bleach on Mr McCabe, he did not know if Huxley was going to do that or if he was going to use the bleach to clean something.  The bleach did not get used but was later taken to Ingham, and the appellant did not know what happened to it.
30. [30]
    When the appellant first spoke about what happened when Huxley and the appellant drove to where Mr McCabe had been left, he said that Mr McCabe was still there and was calling out “Huxley”.  “And then all of a sudden Huxley picks him up and throws him down further and picks up rocks … And throws them on top of him, I didn’t know if he was dead or alive because I was s – standing up the top and – because I was seeing if – I wanted to know if he was alive too, because I wanted him to be alive.”^[45]
31. [31]
    Later in the same interview the appellant was asked for more details about those events.  The appellant said that when they arrived at the place where Mr McCabe had been left, the appellant got out of the car with Huxley.  The appellant said he got out of the car to see if Mr McCabe was there and was alright.  Mr McCabe was there and said “hey”, Huxley responded “hey”, and Mr McCabe said “hey … that you Brent”.  Huxley then said Mr McCabe knew his name,^[46]  went down to Mr McCabe, picked him up, threw him down a bit further, and picked up big boulder rocks.  The police officer asked the appellant, “how could you see, its dark is it?”^[47]  The appellant responded that Huxley had turned the car’s lights on and shone a torch that illuminated Mr McCabe.  The appellant said he couldn’t see Mr McCabe properly but could hear him.  Subsequently, the appellant said he could see the figure of Huxley, with the torch in his mouth, and he could see Huxley pick up Mr McCabe and throw him down further after Mr McCabe said Huxley’s name.  The appellant went on to say that he didn’t know if Huxley picked up Mr McCabe.  The appellant also referred to having bad eyesight associated with drug taking.
32. [32]
    In the police interview, the appellant stood up and held his hands apart in front of him to describe the size of the rocks he said Huxley picked up.  He demonstrated how Huxley picked up such a boulder by lifting his arms above his head, still holding his hands apart.  In those ways the appellant described a boulder many times larger than Mr McCabe’s head.  The appellant told police that Huxley picked up four big boulders and threw them down at Mr McCabe “by the looks of it”.^[48]  After that the appellant did not hear Mr McCabe again.
33. [33]
    Later in the same interview the appellant described these events in different terms: “He just went down there and then he just lost the plot and then fucking picked old mate up and threw him down a bit further and then picked up rocks and threw em on top of him … And – like when he was coming up that hill mate I was saying to me self I don’t know what the fuck I’m gonna do, I don’t know what’s happening and fucking putting meself in the predicament where I was getting deeper and deeper in a hole kind of thing and I didn’t – I just wanted to get away from it.”^[49]
34. [34]
    Subsequently the appellant said Huxley probably walked down three or four metres, threw Mr McCabe and Mr McCabe probably rolled about three metres.  The appellant said, “I couldn’t really see but I could see a shadow going on and I couldn’t see number 1 [Mr McCabe] but I could see Brent [Huxley] with the torch flashing around and lifting him … I was hoping that rocks missed …”.^[50]
35. [35]
    Huxley and the appellant drove back to Ingham.  At Ingham, the appellant stayed a night in a motel paid for by Huxley.  After that the appellant stayed with members of Huxley’s family.  He washed the car.  He burnt his clothes because they had Mr McCabe’s blood on them from when “I got him out of the back of the car”.  When asked whether he burnt his clothes to avoid apprehension, the appellant said, “Not really I burnt it just to get him away from me … I was worried about like karma … [h]aunting me …”.^[51]  The appellant burnt a bag Huxley gave him, disclaimed knowledge of the contents of that bag and said Huxley had told him to do those things.
36. [36]
    In the interview on 18 March 2016, the appellant said Huxley told him he had thrown rocks on top of Mr McCabe.^[52]  The appellant said he couldn’t really see what was going on, and he could hear what was going on.  The appellant denied he had gone down the hill from the road at all.^[53]
37. [37]
    In the appellant’s police interviews he said he was frightened of Huxley and Rewha.  The appellant said he did not want Mr McCabe to be hurt.  He wanted to help Mr McCabe escape but he was too scared of Huxley and Rewha.  He was present at the unit only to stay the night.  He had nowhere else to go.  After the attack on Mr McCabe at the unit the appellant was too frightened of Huxley to say or do anything against him.
38. [38]
    Ms Greer was the only person who gave evidence at the trial of seeing Mr McCabe being assaulted at the unit.  Greer gave evidence that she and Doyle collected Mr McCabe from Charters Towers and arrived at the unit in Townsville at night.  The people at the unit at that time included the appellant and Huxley.  Rewha arrived later the same night.  Greer gave evidence that perhaps an hour or a few hours after she had arrived at the unit she had an argument with Rewha outside the unit at the back.  Rewha raised with her that Mr McCabe had made a sexual advance to her.  The conversation ended rather abruptly when Rewha went inside the unit.  Ms Greer remained outside to finish her cigarette.  After hearing some unusual noises and things being said Greer entered the unit through the back door.  She saw Mr McCabe on the floor in front of the kitchen island bench, with the appellant on the far side of Mr McCabe and Rewha on the side nearer the back door.
39. [39]
    She saw the appellant kick Mr McCabe in the stomach area.  Mr McCabe didn’t move.  He tried to say something but she did not know what.  She walked around to his feet to see if he was breathing.  She noticed a rise and fall in his chest.  He was bleeding from his mouth or nose.  She saw Rewha and the appellant pick up Mr McCabe and carry him out the garage door.  After that she, Doyle, and Rewha left the unit and went to a tavern.

DNA evidence

40. [40]
    DNA matching that of Mr McCabe was found in the unit, the garage and the boot of the car.  No DNA matching that of the appellant was found at any of those places or at the area at Mt Spec where Mr McCabe’s body was found.  Police were not able to find evidence of Mr McCabe’s blood on rocks in the area where his body was found.  The photographic evidence suggests there are countless numbers of rocks in that area.

Evidence of police officers at Ingham

41. [41]
    Officers Folett and Smith were stationed at Ingham.  They had received information to be on the lookout for the car.  Folett gave evidence of having chased the car twice on 16 August and once on 17 August.  During the second chase Folett observed that there was only one person in the car.  Smith gave evidence to similar effect.  He was not sure whether he was able to see how many people were in the car but his recollection was that there was only one person in it.  Eventually the car was located at a motel.  Smith gave evidence that he found a satchel and some clothing on the floor of the front passenger compartment of the car.  Inside the satchel he found a birth certificate and a Medicare card in the name of the appellant.  Collins, a sergeant with long experience working as a fingerprint expert, gave evidence that some of the fingerprints and palm prints belonging to the appellant found on the car were found on the driver’s window, whereas none of the prints belonging to Huxley were found in that area of the car.  Folett and Smith gave evidence that at the beginning of the third chase at Ingham the car accelerated away, overtaking a different car that Folett said was driven by Doyle, which had stopped; Smith gave evidence that Huxley was a passenger in that car.

Davison’s evidence

42. [42]
    Davison gave the following evidence.  He shared a prison cell with the appellant in late September 2015.  Whilst they were together in the prison cell the appellant wrote and gave to Davison two diagrams and a note.  The diagrams are headed “1st Time” and “2nd Time Went Back”.  The diagrams sketch what appears to be the same section of road.  What appears to be a car is sketched in each diagram.  In the second diagram the car is angled across the road in a way which might allow its headlights to illuminate an area beyond one side of the road.  In the first diagram the word “alive” is adjacent to a stick figure off the right hand side of the road.  In the second diagram there are two stick figures adjacent to the letter “A”.  One stick figure is connected by a series of dots to the edge of the road at which the vehicle is pointing; that stick figure is adjacent to the words “Thrown down”.  A series of dots connects that stick figure with the second stick figure, which is further away from the road and near the word “still”.  Beneath the stick figures are the words, “Then Slammed with rocks till Dead”.  The information conveyed by those diagrams is consistent with statements the appellant made in his police interviews.
43. [43]
    The note is headed “What I want you to say”.  In the context of the appellant’s admissions in the later police interviews, the note may readily be understood as a request to the unnamed addressee to manufacture an alibi for the appellant in relation to the second trip to Crystal Creek.  The note suggests that the addressee make statements to the effect that the addressee saw the appellant late at night at a service station, followed  the appellant to Townsville and subsequently back to the service station with Huxley and Doyle who were then to drive to Crystal Creek, gave the appellant a lift to Ingham, and waited there with the appellant until Huxley and Doyle arrived; and that all of them then went to a motel where Huxley told the appellant that Mr McCabe was dead and not to say anything.
44. [44]
    Many statements Davison attributed to the appellant accord with admissions the appellant made about his presence and conduct at the unit, in the car driven by Huxley, and on the two occasions at Mt Spec (or Crystal Creek, as the place was described by Davison).  Davison’s evidence included two significant additions.  In relation to the first occasion at Crystal Creek, Davison said that the appellant told him that when Mr McCabe got out of the boot the appellant punched him in the face before Huxley kicked Mr McCabe down the side of the “pretty steep” hill or cliff.  In relation to the second visit to Crystal Creek, Davison said that the appellant told him that when Mr McCabe yelled out “Is that you” to Huxley, both the appellant and Huxley panicked, they helped each other down the hill to where Mr McCabe was, they both threw rocks at him, and the appellant said to Davison “I’ll never forget the look on his face when I threw the last rock.  He stopped making noises and I knew he was dead by the look on his face”.^[54]
45. [45]
    The appellant told police he had very bad problems in writing.  There was other evidence to that effect.  The appellant said that Davison told him he would help him get bail and get out of jail.  Davison wrote out something on a piece of paper and the appellant copied what Davison had written out.^[55]
46. [46]
    Davison had a lengthy history of offences involving dishonesty.  He benefitted by a reduction in his period of imprisonment by agreeing to give evidence against the appellant.  Defence counsel’s attack upon Davison’s credibility was reflected in the trial judge’s summing up.  The trial judge directed the jury that in order to reach a verdict of guilty of murder upon the basis that the appellant struck Mr McCabe with rocks, the jury would have to be satisfied beyond reasonable doubt that Davison’s evidence was truthful and reliable.  The evidence of Davison was the only evidence that Taylor went down to where Mr McCabe was and all the other evidence at the trial had Taylor remaining at the car.  The trial judge warned the jury that they should not act on the evidence of Davison unless they were satisfied of his reliability, accuracy and honesty.  The jury should take into account that it would be easy enough for Davison to concoct his evidence and it would not be easy for someone in the appellant’s position to refute it.  Davison might have been motivated to fabricate his evidence in order to derive some benefit in terms of his own sentence, his treatment or his release on parole.  After referring to the fact that Davison gave a statement to police that had the effect of mitigating a sentence imposed upon him subsequently and explaining the relevant sentencing law, the trial judge told the jury that there might be a strong incentive for Davison to implicate the appellant, the jury should scrutinise his evidence with great care, they should only act on it after considering it and all the other evidence if they were convinced of its truth and accuracy.  In carefully scrutinising the evidence the jury should have regard to Davison’s lengthy record of convictions for dishonesty and fraud, and the jury should have regard to what Davison stood to gain or thought he stood to gain.  The trial judge referred to other aspects of the way in which Davison gave evidence and directed the jury it would be dangerous for them to act on the evidence of Davison if there was no independent evidence confirming it.

Dr Samarasinghe’s evidence

47. [47]
    Dr Samarasinghe gave evidence that there were significant fractures in the right mid-face area, damage to the right side and front of the skull, and fractures going through the base of the skull to the base of the left side.  It could not be determined whether the damage to the bones in the face and base of the skull occurred before or after death.  The injuries were very significant.  They showed that force had been transferred through the bony base of the right side of the skull to the other side.  That must have been caused by a severe blunt force, such as being struck with a heavy object.  Those injuries were caused by at least one impact but there might have been multiple impacts in the same place or in several places.  If the injuries to the skull were inflicted before death they were less likely to have been caused by punching than by something like kicking with a heavy boot; the latter would be a possibility but the pattern of the injuries was inconsistent with the fractures having been caused by punching.  Dr Samarasinghe had never seen an injury like this from punching.  He favoured kicking or stomping over punching.  The damage to the skull would be less severe in the case of a punch to the head of a person who was standing than in a case in which the head was fixed in position, like when the person is lying down on the ground.  If the person is lying on the ground face up and the force comes straight down whilst the head is on the ground, the force is absorbed through the skull much more.  Dr Samarasinghe could not exclude the possibility that the damage he observed was caused by kicks or stomps whilst Mr McCabe was lying on the floor.
48. [48]
    With reference to the totality of the skull injuries observed, if those injuries were inflicted whilst Mr McCabe was alive they might have caused death instantaneously or within a couple of hours.  If the damage to the front right side of Mr McCabe’s face had occurred when he was alive, it might have been followed by respiratory failure as a result of facial bleeding entering the trachea and lungs, blood loss would have affected circulation, there could have been bleeding around the brain and lacerations to the brain, and there could have been other mechanisms.  Bleeding from the nose or mouth was consistent with the observed damage to the facial bones and there would have been a lot of bleeding from the fractures.
49. [49]
    The extent of the skull fracturing indicated that Mr McCabe would have become unconscious as an immediate consequence of the injuries.  Dr Samarasinghe referred to going into full or partial unconsciousness initially, struggling to breathe, and respiratory difficulties because of the blood loss.  It was possible that Mr McCabe’s speech would have been affected by an interference with his jaw function.  In cross-examination the doctor agreed that the level of unconsciousness caused by those injuries might vary, with some people receiving the same blow not necessarily being rendered unconscious.
50. [50]
    There were hairline fractures on the right side of the ribs on the front and a fracture in each of the bones of the right forearm.  There was a rare possibility that the fractures to the skull, the ribs, and the forearm could have happened at the same time but Dr Samarasinghe favoured separate applications of force to each location to cause those injuries.  The two fractures in the forearm could have been caused by kicking, stomping, or falling, but not merely from a fall from a standing position onto a tiled floor.  The rib fractures resulted from blunt force, such as a fall to the floor, punching, or kicking.
51. [51]
    The doctor considered that the scenario described by the appellant of someone holding a rock above their head and throwing it forwards and downwards at Mr McCabe lying on the ground would produce more injuries than were observed if the rock were bigger than the size of the head, unless the rock had a particularly protruding part that produced the localised injury.  It would be expected that there would be more injuries than were observed if rocks thrown in that manner had repeatedly smashed into the body.  In cross-examination Dr Samarasinghe agreed that fair sized rocks that were not necessarily bigger than the head could cause the fractures if the rocks were thrown on the skull with some force.
52. [52]
    It was theoretically possible that the observed fractures could be caused if someone was propelled down a hill with some force and their face was the first part to strike the rocks.  In re-examination the doctor observed that to sustain the injury it would be expected that there would be a significant drop, but in that case it would be expected that there would be other skeletal injuries; he could not completely exclude the possibility but did not favour it in this instance.
53. [53]
    The head and forearm injuries would have needed application of a significant or serious force but the injuries to the ribs might have been caused by a mild to moderate force.  In relation to the severe force required to cause the injuries to the skull the doctor favoured a single severe blow rather than multiple blows but could not exclude several blows to the same area.

Reasonableness of the verdict if Davison’s evidence should be excluded

54. [54]
    It is convenient first to discuss the Crown case upon the assumption that, as the appellant submits, the evidence of Davison that the appellant confessed to throwing rocks on Mr McCabe should be excluded from consideration because it was implausible and there were serious doubts about Davison’s credibility.  Upon the assumption that Davison’s evidence should be excluded from consideration, the Crown case under s 7(1)(b) and (c) was that the appellant was guilty of murder because the prosecution proved beyond reasonable doubt that when Huxley and Rewha did the acts which caused the death of Mr McCabe, they intended to kill Mr McCabe or cause grievous bodily harm; the appellant knew that they held that intent; the appellant aided or did acts for the purpose of aiding Huxley and Rewha to kill or do grievous bodily harm to Mr McCabe; and the appellant did so intending to aid or help Huxley and Rewha murder Mr McCabe.^[56]  The prosecutor submitted to the jury that there “was one episode of violence from when [Mr McCabe] was first attacked at [the unit] to when he was finally left at Crystal Creek at the end of the second visit” and “somewhere along the line during that episode of violence such violence was inflicted on [Mr McCabe] as to be a cause of his death”,^[57] and it was sufficient for the prosecution to prove that a substantial or significant cause of Mr McCabe’s death – which the prosecutor identified as the facial and skull fractures – occurred during that single episode of violence.
55. [55]
    The appellant submitted that it was not open to the jury to find that Mr McCabe had received any injury that substantially contributed to his death during the attack upon him at the unit.  The appellant also submitted that the evidence was insufficient to prove that the appellant aided Huxley in causing Mr McCabe’s death with an intention that the appellant’s actions would aid Huxley to do so or to inflict grievous bodily harm upon Mr McCabe at the time when Mr McCabe’s death was caused; at worst, the appellant’s actions were done with callous indifference to Mr McCabe’s fate.  The appellant submitted that without the evidence of Davison, the Crown case did not establish that the appellant knew or intended that his presence at the scene on the second occasion at Mt Spec would aid or encourage Huxley to kill Mr McCabe or cause him grievous bodily harm.
56. [56]
    The appellant could not be liable under s 7 for murder unless the Crown proved against him beyond reasonable doubt that Huxley or Rewha murdered Mr McCabe.  The relevant provision of the Code is s 302(1)(a).  The elements of the offence applicable in this case are that Mr McCabe is dead, Huxley or Rewha (at the unit) or Huxley (at Mt Spec) caused Mr McCabe’s death, they did so unlawfully, and at the time of the act which caused the death, they intended to kill Mr McCabe or cause grievous bodily harm.  (It is convenient to discuss each of the routes to conviction upon which the Crown relied, although ground 1 must fail if either one of them was proved beyond reasonable doubt.)
57. [57]
    Defence counsel acknowledged in his address to the jury, and it was proved, that Mr McCabe was dead.  As to causation upon the case that Mr McCabe was killed at Mt Spec, the jury could readily find that the appellant’s statements that Mr McCabe ceased to make any noise after Huxley threw rocks on his head proved beyond reasonable doubt against the appellant that Huxley caused Mr McCabe’s death.  As to the alternative case that Mr McCabe died as a result of an act done at the unit, my discussion of ground 3 explains why I would hold that it was open to the jury to find that the acts of Huxley and Rewha in stomping upon and kicking Mr McCabe caused his death.
58. [58]
    An issue about causation at the trial concerned the possible toxic effect of methylamphetamine consumption by Mr McCabe.  Although Mr McCabe’s remains were substantially decayed and decomposed when they were found, some liver tissue was found.  Upon analysis it revealed evidence of methylamphetamine consumption.  That was consistent with evidence that Mr McCabe had consumed methylamphetamine.  In the appellant’s police interviews he said that before any of the violence at the unit, Mr McCabe injected himself with methylamphetamine.  He also said Mr McCabe was vomiting immediately before Rewha started belting him.  Greer said she heard Mr McCabe vomiting and saying something similar to “that was a good shot”; she said it was normal to vomit after having a strong or good quality shot of methylamphetamine.^[58]
59. [59]
    A forensic pharmacologist and toxicologist, Professor Drummer, expressed the opinion that the concentration of methylamphetamine and amphetamine in the liver tissue did not necessarily have any resemblance to the concentration at the time of Mr McCabe’s death; all he could say was that Mr McCabe had consumed the drug within a few days of his death.  Death from methylamphetamine consumption was relatively uncommon.  Methylamphetamine stimulated the function of the heart.  Professor Drummer referred to various ways in which the drug could quickly or over the longer term result in death.  Even taking into account that Mr McCabe consumed both alcohol and methylamphetamine, the effect of Professor Drummer’s evidence was that it was no higher than a possibility that he might have died from intoxication.  Professor Brown had expertise in biomedical science, pharmacy, and forensic pharmacology.  He expressed the opinion that the concentration of methylamphetamine found in Mr McCabe’s body reflected the concentration in the liver at the time of death.  He thought it looked as though Mr McCabe was a chronic user rather than having taken a massive dose shortly before death that would cause death.  When specifically asked whether the level of decomposition would affect the level of drug detected, Professor Drummer said he had no idea.  He agreed that if Mr McCabe had injected the drug and it induced vomiting that was an indication of toxicity.  He added that this wouldn’t change the blood concentration.  It was hard to predict exactly what was going to happen in this case.
60. [60]
    Upon the expert and non-expert evidence at the trial, there was no more than a possibility that Mr McCabe sustained methylamphetamine toxicity capable of causing his death.  The trial judge directed the jury that in considering whether the prosecution had proved beyond reasonable doubt that Mr McCabe died as a result of the effects of the physical injuries described by Dr Samarasinghe, the jury was required to consider the evidence of the possibility that Mr McCabe died from the toxic effects of methylamphetamine consumption.  When the evidence about methylamphetamine and alcohol consumption is considered in the context of the evidence in the Crown case that an apparently vigorous and healthy Mr McCabe died after having been very forcefully stomped on at the unit, or after large rocks were thrown on him at Mt Spec, it was reasonable for the jury to exclude beyond reasonable doubt any hypothesis that methylamphetamine or alcohol consumption was a cause of his death.
61. [61]
    Upon the evidence, any act of Huxley and Rewha (at the unit) or Huxley (at Mt Spec) that caused the death of Mr McCabe was unlawful.  The evidence excluded, for example, any possibility that Huxley or Rewha acted in self-defence,^[59] that the act causing the death of Mr McCabe was unwilled or his death was accidental,^[60] or that the relevant act might have been lawful upon any other basis.  (The protection in s 31(1) of the Code of compulsion is applicable for manslaughter but not for murder.^[61])
62. [62]
    The remaining element of the offence of murder required the Crown to prove that at the time of the act which caused the death, Huxley and Rewha (at the unit) or Huxley (at Mt Spec) intended to kill Mr McCabe or to do him grievous bodily harm.
63. [63]
    There was some evidence that Huxley and Rewha had consumed methylamphetamine.  In the appellant’s police interview of 18 September, he said that before any of the violence in the unit he had injected himself with methylamphetamine, that he had mixed for himself and Huxley, and Huxley injected himself with that methylamphetamine.  Ms Lee gave evidence that she visited Huxley at the unit on 15 August 2015 when the appellant and Rewha were also there.  She was there by herself for a few hours when the men left before they returned at about 8 or 8.30 pm.  She had a shot of methylamphetamine whilst at the unit.  She was a heavy user of the drug.  The drug she injected was particularly strong and made her feel sick and dry retch.  She saw the appellant, Huxley and Rewha use methylamphetamine.  She did not see anything like what had happened to her happen to them when they used it; nothing whatsoever happened to them when they used the drug.^[62]  The appellant said that he thought that Rewha smokes methylamphetamine but he did not see him smoke it at all.
64. [64]
    There was no reasonable basis in that very general evidence for doubting that at the relevant times Huxley and Rewha were capable of forming an intention to do grievous bodily harm or to kill.  There was no evidence that Rewha’s capacity to form such an intention was affected at all by consumption of methylamphetamine or another drug.
65. [65]
    The appellant’s admissions very clearly describe Mr McCabe being murdered.  If Huxley killed Mr McCabe by throwing large rocks on him after the second trip to Mt Spec, during which they stopped to buy what they thought was bleach, the inference is inescapable that Huxley did so intending to kill.
66. [66]
    If Mr McCabe’s death was instead caused by an act of Rewha or Huxley at the unit, the inference is that each of them then intended at least to do grievous bodily harm.  Dr Samarasinghe’s evidence was that a severe blunt force was required to cause the skull injuries he described and those injuries would not have been caused by punches.  The Crown case was that those injuries caused Mr McCabe’s death.  Greer and the appellant both described Mr McCabe’s condition after he was stomped on in the unit in terms that unmistakeably convey that he in fact suffered extremely serious injuries.  In the 16 September interview the appellant was sure that Mr McCabe had a broken jaw, a broken nose, and probably a couple of broken ribs.  The appellant’s statement in the 18 September interview that Mr McCabe “could’ve probably got broken ribs and broken arm” is consistent with Dr Samarasinghe’s description of such injuries.  The appellant’s reference to Mr McCabe being carried to the garage and remaining still when zip ties were put on him also conveys that Mr McCabe had been seriously injured.  In that context, an intention to cause at least grievous bodily harm was an inescapable inference from the appellant’s description of the angry Rewha and Huxley cooperating with each other to “smash”, stomp on and kick Mr McCabe with great violence after they had earlier violently attacked him without warning, they had pursued him when he attempted to escape, one of them had asked the appellant to grab him, and one or both of them had felled him.
67. [67]
    Upon the assumption that, as the appellant submitted, Davison’s evidence of the appellant’s confession should be excluded from consideration, the real issue at the trial was whether the appellant had done an act of the kind described in s 7(1)(b) or s 7(1)(c) with the necessary knowledge and intention to render him liable for the murder of Mr McCabe.
68. [68]
    Section 7(1) provides:

“When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—

1. (a)
   every person who actually does the act or makes the omission which constitutes the offence;

2. (b)
   every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

3. (c)
   every person who aids another person in committing the offence;

4. (d)
   any person who counsels or procures any other person to commit the offence.”

69. [69]
    The word “offence” denotes “the element of conduct (an act or omission) which, if accompanied by prescribed circumstances, or if causing a prescribed result or if engaged in with a prescribed state of mind, renders a person engaging in the conduct liable to punishment”.^[63]  Sections 7(1)(b) and 7(1)(c) apply only if – when the person did or omitted to do the act described in (b) or aided as described in (c) – the person knew the essential matters which constitute the offence committed by another person.  Thus, for a person to be responsible for the offence of murder under s 7(1)(b) or s 7(1)(c) that person must have known that whoever did an act that killed the victim did so intending to cause death or grievous bodily harm.^[64]  Section 7(1)(b) in terms requires the prosecution also to prove that the person did or omitted to do the relevant act for the purpose of enabling or aiding the principal offender to commit the offence.  Although s 7(1)(c) does not express any similar requirement, it has been held that it requires the prosecution to prove that the person intended to aid the other person in committing the offence.^[65]
70. [70]
    Mere presence at the scene of a crime ordinarily does not amount to aiding under s 7(1)(c), but in a particular case “[v]oluntary and deliberate presence during the commission of a crime without opposition or real dissent may be evidence of wilful encouragement or aiding” and “a calculated presence or a presence from which opportunity is taken can project positive encouragement and support to a principal offender”.^[66]
71. [71]
    An issue at trial concerned the effect of the appellant’s consumption of methylamphetamine and beer upon his state of mind.  At various times in the appellant’s police interviews he referred to being under the influence of methylamphetamine with which he had injected himself before any of the violence in the unit.  Whether and the extent to which the appellant’s statements to that effect were true and reliable was a matter for the jury.  The jury could regard the appellant’s many and very detailed statements to police concerning his own states of mind and what he, Huxley and Rewha had done at various times as compelling the conclusion that methylamphetamine and alcohol consumption did not detract from the available inferences from the appellant’s admissions that he had the knowledge and intention necessary to be found liable under s 7 as a party to the murder of Mr McCabe.
72. [72]
    As the trial judge directed the jury, they were entitled to have regard to any statements the appellant made in the police interviews which they might view as indicating the appellant’s innocence, and to give them whatever weight they thought was appropriate.  Macrossan CJ observed in R v Beck^[67] that a jury are “quite entitled to have in mind the possibility that self-serving portions of an accused’s statement may not be as reliable as those parts which are against interest”.  The jury could find that the appellant told many lies in his police interview.  That supplied additional grounds for finding that exculpatory statements about his state of mind and conduct should be rejected.  All of the inferences about the appellant’s knowledge and intention that might reasonably be drawn from his admissions about his conduct could reasonably be drawn by the jury despite the appellant’s numerous exculpatory statements.  These include his self-serving statements to the effect that he did not intend harm to come to Mr McCabe, he thought Mr McCabe would be able to find his way back from Mt Spec, Huxley made statements suggesting that no further harm would be done to Mr McCabe at Mt Spec, and the appellant’s presence and conduct resulted from fear of Huxley and Rewha or an effect of the appellant’s methylamphetamine and alcohol consumption.
73. [73]
    Another matter that the jury legitimately could take into account as supporting such an approach is that the appellant made statements that suggested he had a close and long standing relationship with Huxley: he referred to Huxley as supposedly having been his “brother”; he said that when he rang Huxley, Huxley dropped everything and collected him in the car; and the appellant attributed his statement at the unit that he was “in” to “brotherhood”.  This language suggests that there was a bond between Huxley and the appellant of a kind that was consistent with the appellant having intentionally supported and assisted Huxley throughout, whether or not the appellant did so reluctantly and wished he had not felt bound to do so.
74. [74]
    The jury could find that, as the appellant said, he closed the door to the patio whilst Mr McCabe was being assaulted, notwithstanding brief evidence given by Greer that at one point she shut that door.  The statement subsequently volunteered by the appellant that the back door went to a yard that was “closed off with a fence” does not explain why he shut the door.  The photographs of the fence do not demonstrate that it could not be scaled.  In circumstances in which Mr McCabe was in the unit for the first time and the appellant had familiarised himself with the layout and knew that the front door was locked, the inference is readily drawn that the appellant shut the door to remove a potential escape route and make it easier for Huxley and Rewha to continue to attack Mr McCabe.
75. [75]
    The violence of the surprise attacks upon Mr McCabe up to that time justifies the inference that the appellant then must have known that Rewha and Huxley intended to continue assaulting Mr McCabe in ways that would at least cause him very serious injuries.  The appellant expressed as much when he told police that Rewha and Huxley were “gonna belt him”.  That the appellant knew that Huxley and Rewha intended very serious injury to Mr McCabe and he intended to facilitate their intention is also suggested by the fact that he facilitated Huxley’s and Rewha’s continuing assaults by twice punching the already injured and bleeding Mr McCabe in the face with enough force to cause Mr McCabe to walk backwards to where Huxley and Rewha were standing, even though Rewha and Huxley had asked the appellant only to grab him.  The jury did not have to accept the appellant’s statement that he was motived by fear of what Mr McCabe might do to him.
76. [76]
    Dr Samarasinghe’s evidence that the pattern of the injuries on Mr McCabe’s skull was inconsistent with the fractures having been caused by punching but it was possible that they were caused by something like kicking with a heavy boot made it reasonable for the jury to conclude that, if Mr McCabe sustained a blow at the unit which caused his death, that blow was sustained after the appellant had assisted Rewha and Huxley to inflict serious violence upon Mr McCabe (by shutting the back door and punching the already injured and bleeding Mr McCabe in the face with such force as to propel him backward towards Rewha and Huxley).  The same view is consistent with Dr Samarasinghe’s evidence that, once Mr McCabe suffered the extent of skull fracturing observed by the doctor, he would immediately have become unconscious, or partly unconscious; upon the appellant’s account, Mr McCabe had jumped to his feet and was attempting to escape with sufficient vigour for Rewha and Huxley to ask the appellant to grab Mr McCabe and for the appellant instead to punch him in the face.  As the appellant had anticipated before he punched Mr McCabe, Rewha and Huxley did “belt” Mr McCabe; they continued to assault him in a way that caused him very serious injuries.
77. [77]
    Accordingly, if the jury found that the death of Mr McCabe was caused at the unit by Rewha or Huxley stamping or kicking Mr McCabe in the way described by the appellant in his police interviews, it was also reasonably open to the jury to find that the Crown had proved beyond reasonable doubt that the appellant knowingly did acts for the purpose of enabling or aiding or by way of in fact intentionally aiding them to assault Mr McCabe with the shared intention of at least causing him grievous bodily harm.
78. [78]
    The Crown case is stronger again if the jury concluded that the act which caused Mr McCabe’s death was instead done by Huxley at Mt Spec.
79. [79]
    In circumstances in which the appellant had participated in the extended violent assault upon Mr McCabe, he was present when zip ties were put on Mr McCabe, and he understood that Huxley remained angry at that time, the appellant’s admitted conduct in opening the boot plainly could be regarded as an act knowingly done for the purpose of aiding and intentionally, in fact aiding Huxley to do further serious violence to Mr McCabe.  An inference to that effect is supported also by the appellant’s conduct in participating in cleaning up blood at the unit whilst others were involved in other cleaning, including cleaning of fingerprints.  If the jury accepted Greer’s evidence that the appellant himself helped to carry Mr McCabe to the garage, the jury also could find that he engaged in that conduct for the purpose of helping Huxley to visit further serious violence upon Mr McCabe.
80. [80]
    Nothing in the numerous statements made by the appellant about what he said and did after he told Rewha and Huxley he was “in” suggests that he subsequently expressed dissent from that agreement or any real opposition to the sustained violent maltreatment of Mr McCabe.  The jury were entitled to regard this evidence as a strong indication that the appellant intended to support and encourage Rewha and Huxley to continue their disabling attacks on Mr McCabe.  It is not entirely clear on the appellant’s statements precisely when he agreed that he was “in”.  Upon statements by the appellant that he said that he was “in” only after Mr McCabe was put into the car boot, this evidence supplies powerful support for the Crown case that the appellant’s presence and conduct at least during the two trips to Mt Spec amounted to intentional support and encouragement of the conduct of Huxley described by the appellant.
81. [81]
    The appellant admitted that he was familiar with the area where the body of Mr McCabe was found.  By the time he arrived at that place, some 70 kilometres from the unit, there was yet a stronger basis for concluding that the appellant shared with Huxley an intention to kill Mr McCabe, or at least to do further very serious violence to him.  That is not inconsistent with the appellant’s statement in the police interview of 18 September that he said “yeah alright” when Huxley said “I’m gonna just dump him up, up the road up here and – and then we’ll leave him there and he’ll be right for tomorrow”.^[68]  The appellant’s following remark that he was “just agreeing to what he’s … saying because … I could’ve been with old mate … That was what I was paranoid of”^[69] is redolent of a belief that Mr McCabe’s life was in danger.  From early in the interview the appellant had referred to being “paranoid for my life type of thing at the time you know what I mean and for me not to get hurt”.^[70]
82. [82]
    It also must be borne in mind that, upon statements by the appellant, by this time Mr McCabe had been carried for some 70 kilometres in the boot of a car after being severely beaten and had sustained serious injuries, including to his nose, jaw, ribs, and one arm.  In the circumstances described by the appellant up to this point, his admitted conduct in getting out of the car and assisting Mr McCabe out of the boot readily could be seen as having been knowingly done, for the purpose of aiding, or in fact intentionally aiding Huxley to inflict further serious injury upon Mr McCabe.
83. [83]
    The jury could also accept at face value the appellant’s unambiguous admission that Huxley wanted to get bleach to throw on Mr McCabe.  That conveys that the appellant believed either that Mr McCabe was already dead (so he and Huxley were surprised to find Mr McCabe alive when they arrived for the second time at Mt Spec) or Mr McCabe would be killed before the bleach was used.  Notwithstanding that the substance was not in fact bleach and was not thrown upon the body, the appellant’s conduct in carrying out to the car a 20-litre container of what he believed to be bleach to be thrown upon Mr McCabe was evidence that the appellant intentionally did an act for the purpose of aiding Huxley to intentionally kill Mr McCabe.  The jury could readily regard the appellant’s subsequent statements to the effect that Huxley said nothing about using the bleach as a belated attempt to explain away what he had just admitted.
84. [84]
    Viewed in the context of the appellant’s admitted statements and conduct in the period starting when Rewha first attacked Mr McCabe in the unit, the appellant’s conduct in driving with Huxley to, and getting out of the car during, the second visit to Mt Spec is readily capable of being viewed as intentional encouragement to Huxley to intentionally kill Mr McCabe.
85. [85]
    I conclude that it was reasonable for the jury to find that the Crown proved beyond reasonable doubt that the appellant was liable for the murder of Mr McCabe under s 7(1)(b) or s 7(1)(c), whether the act that caused Mr McCabe’s death was done by Huxley and Rewha at the unit or by Huxley at Mt Spec.
86. [86]
    That conclusion does not depend upon the evidence of Davison.  In view of the substantial grounds for impugning the credibility of Davison’s evidence to that effect, his evidence alone would be an insufficient basis for a conviction.  There was, however, some support in the appellant’s police interviews for Davison’s evidence that the appellant went with Huxley down the hill to where Mr McCabe was killed.
87. [87]
    In the 17 September interview, the appellant made it very clear that, although Huxley had a small torch and the headlights of the car were directed over the side of the road, it was impossible for the appellant to see the place where Mr McCabe had been left.  That is consistent with uncontroversial evidence about the steepness of the slope down from the road, the nature of the terrain and vegetation, and the absence of any moonlight.  Yet, when the appellant first told police in the 18 September interview about what happened on the second visit to Mt Spec, the appellant gave a vivid description of Huxley throwing Mr McCabe further down the slope, picking up rocks, and throwing the rocks on top of Mr McCabe.  The jury were not obliged to accept his subsequent statement, which appears to have been given in a disjointed way, that he remained near the car and he wanted Mr McCabe to be alive.
88. [88]
    The appellant subsequently repeated his statement that Huxley threw Mr McCabe further down the hill and picked up big boulder rocks.  Thereafter, although the appellant gave varying versions about whether and the extent to which he could see Mr McCabe, the appellant gave a detailed description of Huxley picking up boulders, the size of the boulders and Huxley throwing them on Mr McCabe.  It was not until the interview of 18 March 2016 that the appellant said Huxley had told him that he had thrown rocks on top of Mr McCabe.
89. [89]
    This evidence provided a foundation for the jury to find that the appellant clearly saw Huxley pick up large rocks and kill Mr McCabe by throwing the rocks on him, and that necessarily required the appellant to have been down the hill with Huxley at that time.  That is consistent with Davison’s evidence that the appellant confessed that when Mr McCabe yelled out Huxley’s name both the appellant and Huxley helped each other down the hill to Mr McCabe.  These different pieces of evidence could be regarded as corroborating each other.  They are consistent with the admissions by the appellant which allowed the jury to find that the appellant had co-operated in Huxley’s violent attacks upon Mr McCabe from well before the appellant and Huxley drove to Mt Spec with Mr McCabe in the boot of the car.
90. [90]
    For these reasons it was reasonable for the jury to find that the appellant climbed down the hill with Huxley and was present with him when he murdered Mr McCabe.  The jury could reasonably regard that conduct, in a context of all that had gone before it, as support for the conclusion that the appellant was intentionally present when Huxley killed Mr McCabe with the knowledge or expectation that Huxley intended to do so and for the purpose of encouraging and supporting him in doing so.  That supplies an additional ground for concluding that the jury could reasonably find upon the evidence that the Crown proved beyond reasonable doubt that the appellant was liable for the murder of Mr McCabe under s 7(1)(b) or s 7(1)(c).

Davison’s evidence and the liability of the appellant as principal offender

91. [91]
    The appellant submits that the evidence of Davison was so unreliable and implausible that, “even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted” such that the Court “is bound to act and to set aside a verdict based upon that evidence”.^[71]
92. [92]
    Because I have concluded that it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty of murder without reference to the evidence of Davison, it is not necessary to decide whether it was reasonably open to the jury instead to convict the appellant as a principal offender in reliance upon Davison’s evidence.
93. [93]
    However, in light of my conclusion in [90] of these reasons and the significance of the jury’s role in finding the facts, I consider that it was reasonable for the jury to convict the appellant as a principal offender notwithstanding the substantial grounds for attacking Davison’s credibility.  If the jury found that, despite the appellant’s repeated denials in his police interviews, the appellant had climbed down the hill with Huxley, that conduct, together with the evidence of the appellant’s extensive co-operation with Huxley from the time of the first assault upon Mr McCabe at the unit, would enable the jury reasonably to act upon Mr Davison’s evidence of the confession.

Ground 2: A miscarriage of justice was caused by the learned trial judge permitting the jury to reason towards conviction in the way set out at questions 4 – 8 of the question trail.

94. [94]
    In the final form of the question trail provided by the trial judge to the jury, question 1 asked whether the prosecution had proved beyond reasonable doubt that Mr McCabe was dead.  Questions 2 and 3 concern the liability of the appellant as a principal offender under s 7(1)(a) of the Code.  Questions 4 – 8 concern liability under s 7(1)(b) and s 7(1)(c):

“4. Has the prosecution proved beyond reasonable doubt that either or both Brent Huxley or Mathew Rewha caused either directly or indirectly the death of Michael McCabe?

If your unanimous answer is ‘Yes’, go to question 5.

If your unanimous answer is ‘No’, your verdict is Not Guilty of Murder and Not Guilty of Manslaughter.  Go no further.

5. Has the prosecution proved beyond reasonable doubt that when Brent Huxley or Mathew Rewha or both did the act or acts that caused the death of Michael McCabe that either or both intended to kill Michael McCabe or to do him some grievous bodily harm?

If your unanimous answer is ‘Yes’, go to question 6.

If your unanimous answer is ‘No’, your verdict is Not Guilty of Murder.  Go to question 9.

6. Has the prosecution proved beyond reasonable doubt that Jason Taylor:

(a) did acts or made omissions for the purpose of enabling or aiding Brent Huxley or Mathew Rewha or both to murder Michael McCabe, even if those acts or omissions did not in fact assist;

OR

(b) aided Brent Huxley or Mathew Rewha or both to murder Michael McCabe?

If your unanimous answer to both 6(a) and 6(b) is ‘No’, your verdict is Not Guilty of Murder.  Go to question 9.

If your unanimous answer to either 6(a) or 6(b) is ‘Yes’, go to question 7.

7. Has the prosecution proved beyond reasonable doubt that Jason Taylor did so with the intention to aid or help Brent Huxley or Mathew Rewha or both murder Michael McCabe?

If your unanimous answer is ‘No’, your verdict is Not Guilty of Murder.  Go to question 9.

If your unanimous answer to question 7 is ‘Yes’, go to question 8.

8. Has the prosecution proved beyond reasonable doubt that Jason Taylor had actual knowledge or expectation of the essential facts of that offence, that is:

(a) that Brent Huxley or Mathew Rewha or both caused directly or indirectly the death of Michael McCabe;

AND

(b) that when Brent Huxley or Mathew Rewha or both did the act or acts that caused the death of Michael McCabe either or both intended to kill or cause grievous bodily harm to Michael McCabe?

If your unanimous answer is ‘No’, your verdict is Not Guilty of Murder.  Go to question 9.

If your unanimous answer to both questions 8(a) and 8(b) are ‘Yes’, your verdict is Guilty of Murder.  Go no further.”

95. [95]
    The outline of submissions on behalf of the appellant contends that, based on Beck and other cases relating to aiding by presence, the jury should not have been permitted to reach a verdict of guilty of murder based on questions 4 – 8.  In oral argument counsel for the appellant made a different point, or at least a narrower one.  He acknowledged that question 5 correctly required that the intention of Huxley or Rewha to kill Mr McCabe or do him some grievous bodily harm must coincide with the time when the relevant one of them, or both of them, did the act or acts that caused the death of Mr McCabe, but he submitted that question 6 did not require that necessary temporal coincidence.  It was submitted that whilst it was not necessary that the aiding coincide with the killing, it was necessary that the intention of the appellant that his relevant acts were done or omissions were made for the purpose of enabling or aiding Huxley or Rewha must be held at the time of the relevant act or omission or at the time of his conduct in actually aiding Huxley or Rewha.  That argument misconstrues the questions.  Question 7 required that temporal coincidence by requiring the prosecution to prove that Taylor did or omitted to do an act described in s 7(1)(b) or aided in terms of s 7(1)(c) “with the intention to aid or help” Huxley or Rewha or both to murder Mr McCabe.
96. [96]
    The appellant argued that questions 6 and 7 nevertheless left open the possibility of conviction on the basis of an aiding of Rewha, who may have held the requisite intention to kill Mr McCabe or do him some grievous bodily harm when the events at the unit occurred, whilst the acts that caused Mr McCabe’s death were done later by Huxley at Mt Spec.  Bearing in mind that questions 6 and 7 must be read in the context of questions 4 and 5 it is difficult to accept that a juror might have reasoned in that way.
97. [97]
    Furthermore, such an interpretation of the questions would be inconsistent with many of the trial judge’s directions to the jury.  After referring to the alternative murder case for the prosecution that either Huxley or Rewha caused the death of Mr McCabe, either at the unit or at the cliff face on one of the visits, the trial judge referred to the argument by the prosecution that “although it may not have been the defendant who actually committed the murder, the defendant is also guilty of murder because he aided Huxley or Rewha or both of them to commit it”.  The trial judge directed the jury that “[p]roof of aiding involves proof of acts or omissions intentionally directed towards the commission of the principal offence by the perpetrator and proof that the defendant was aware of that, of at least the essential matters constituting the crime in contemplation”.^[72]
98. [98]
    That was reinforced by subsequent directions.  The trial judge stated that the prosecution was required to prove that “there was a principal offender or perpetrator, and proof of the commission of the offence by that someone, and that the defendant aided that person to commit it”.^[73]  The same concept was embodied in the trial judge’s direction requiring the prosecution to prove beyond reasonable doubt “that Huxley or Rewha or both of them committed the offence; that the defendant did acts or made omissions for the purpose of enabling or aiding that other person to commit the offence, even if those acts or omissions did not, in fact, assist; that the defendant did so with the intention to aid Huxley or Rewha or both of them to commit the offence; … that the defendant had actual knowledge or expectation of the essential facts of that offence … all the essential matters which make the acts done a crime, including the state of mind of Huxley or Rewha or both when that person committed the offence”.^[74]  With respect to s 7(1)(c), the trial judge adopted a similar formulation, including the statement that the prosecution must prove “that when the defendant assisted Huxley or Rewha or both of them, he did so intending to help him commit murder”.
99. [99]
    The point was again very clearly explained by the trial judge in a redirection responding to a question from the jury asking for clarification about the difference between indirectly causing the death (question 2) and aiding in the death of Mr McCabe.^[75]  The trial judge gave concise directions which included the following:

“The concept of aiding … involves, as you might have seen from section 7 but also from the questions from questions 4 through to 8 – they involve the assistance given by one person to another person who in this context is said to have done the act that caused the death. … If A does an act that causes the death of somebody, whether directly or indirectly, aiding involves B helping A bring about that result or do that act.

[The trial judge gave directions explaining what was meant by indirectly causing death, in terms of question 2].

So in question 2, the question is directed to whether Mr Taylor by his own acts has caused the death or indirectly caused the death.  Questions 4 and following up to 8 are directed to the scenario where somebody else has done the relevant act that has caused death either directly or indirectly but has Mr Taylor aided by some act or some omission that other person to do that.”^[76]

100. [100]
     Finally, the topic was revisited when the jury asked, in relation to question 8, for a clarification of the meaning of “had actual knowledge or expectation of the essential facts”.^[77]  In the course of giving such an explanation, the trial judge reminded the jury of why there were references to Huxley and Rewha as “either acting together or either-or”; it was “because there were a series of assaults over a period of time and there is that issue for you to determine when the death-causing act occurred”.^[78]  After referring to the question whether the death-causing act occurred in punches or kicks described as having occurred at the unit or as a result of one or some of the actions at the scene of the body disposal or after, the trial judge stated that “you will appreciate that Mr Rewha was only involved in the first round”.  The trial judge then referred to the medical evidence summarised on the previous day and concluded:

“You will recall that the essential facts of murder are causing the death of somebody with intent to … kill or to cause grievous bodily harm.  And it shouldn’t surprise you to learn that if you’re to be proven guilty as an aider of a murderer, that you should have knowledge or expectation that that person has done that act or is to do that act and did that act with intent or is to do that act with intent, to be guilty also as a murderer because you’ve aided a murder.”^[79]

101. [101]
     In light of these clear and repeated directions, it cannot be accepted that the jury might have convicted the appellant of murder upon the footing that the appellant aided only Rewha but it was only Huxley who did an act that caused the death of Mr McCabe.
102. [102]
     Otherwise, my reasons in relation to ground 1 explain my conclusion that no miscarriage of justice was occasioned by permitting the jury to reason towards conviction in the way set out at questions 4 – 8 of the question trail.

Ground 3: A miscarriage of justice was caused by the learned trial judge permitting the jury to convict of murder based on the appellant’s conduct at the unit.

103. [103]
     The appellant argued that allowing the Crown to invite the jury to convict of murder based solely upon the appellant’s actions at the unit involved speculation that any injuries from the assault at the unit substantially contributed to the death of Mr McCabe.  It is submitted that such a conclusion is not reasonably open on the evidence.
104. [104]
     The point was not taken by defence counsel at the trial.  It is inconsistent with the way in which defence counsel conducted the trial.  Defence counsel relied upon the uncertainty in the evidence about when the injury or injuries causing death occurred.  Defence counsel submitted to the jury:

“The Crown cannot tell you when those injuries to Mr McCabe’s face occurred.  They can’t.  They can’t even tell you if they occurred before death on the forensic evidence.  Yet they say to you that Mr Taylor has somehow assisted Huxley or Rewha to inflict the injuries that killed him, knowing that he was assisting them to do that, knowing and intending to assist them to commit murder.  But they can’t say when the injuries occurred.  But don’t worry about that, whenever they occurred he was helping.  How can he be?  Nobody knows when they happened.”^[80]

105. [105]
     That submission reflected the way in which defence counsel had cross-examined Dr Samarasinghe.  It was defence counsel who elicited the doctor’s answers that the level of consciousness with respect to the observed injuries to the skull was variable, and that some people receiving a blow to the head will be rendered unconscious while others receiving the same blow might not necessarily be rendered unconscious.  Defence counsel also elicited the doctor’s agreement to the proposition that a lay person might not appreciate that an underlying significant injury explained bleeding from the nose and mouth.  Defence counsel also put to Dr Samarasinghe that a fracture occasioned to the jaw or cheekbone on one occasion could have been made worse by subsequent applications of force to that area on different occasions.  The doctor agreed that if force continued to be applied to a particular area the injury was not going to get better and, as an example, if one part of the face was being hit, what started off as a small fracture could radiate.
106. [106]
     Furthermore, depending upon the jury’s assessment of the evidence, the jury could find either that Mr McCabe was killed by a powerful stomp on his head at the unit or by a rock thrown on his head at Mt Spec.  Expressions used by the appellant in his police interviews convey that an extraordinary degree of force was used by Rewha and Huxley: they “smashed” him; were “stampin’ all over him”; were “stamping the fuck out of him”; “kicking the shit out of him”; “walking … all over him”; kicking him “like a soccer ball”; and going “for a gold”.  The evidence of Greer suggested that while she was in the room after the attack upon Mr McCabe he did not move, he was bleeding but she could not tell whether it was from the mouth or nose, he was attempting to say something, and he was picked up from the floor and carried out through the garage door.  Dr Samarasinghe gave evidence that he could not exclude the possibility that the damage to the skull he observed was caused by kicks or stomps whilst Mr McCabe was lying on the hard floor of their unit.  Whilst he considered that Mr McCabe would have become unconscious as an immediate consequence of the injuries to his skull, he referred to the potential for the level of unconsciousness to vary.  Upon Ms Greer’s evidence Mr McCabe may have been only semi-conscious.
107. [107]
     The evidence that Mr McCabe was conscious at any time after Greer said she heard him making sounds whilst on the floor of the unit comes only from statements by the appellant.  It was open to the jury to reject those statements.  If the jury did reject this, the medical evidence that Mr McCabe would have died within two hours after sustaining the skull fractures was not inconsistent with a finding that Mr McCabe died as a result of the assaults by Rewha and Huxley upon Mr McCabe whilst he was on the floor of the unit.
108. [108]
     Upon the transcript it may seem more likely that Mr McCabe was killed at Mt Spec by rocks being thrown on his head (by Huxley, upon the appellant’s statements, or by the appellant, upon Davison’s evidence), but the jury had an advantage in seeing and hearing the evidence unfold and its function as the primary fact finder must be respected.
109. [109]
     The appellant did not suffer any miscarriage of justice by the way in which this issue was left to the jury.

Ground 4: A miscarriage of justice was caused by the learned trial judge directing the jury on the use of the appellant’s lies as proof of murder.

110. [110]
     Following argument at the trial before the trial judge summed up, the number of lies demonstrating consciousness of guilt of murder originally to be relied upon by the prosecution was reduced to five:

     1. (a)
        In the police interview on 18 August, the appellant said that his first contact with Huxley was on 16 August.  (The appellant subsequently admitted that he was with Huxley at the unit and at Mt Spec on 15 August.)
     2. (b)
        In the police interview on 16 September, the appellant told police that after Rewha and Huxley had assaulted Mr McCabe at the unit the appellant had gone to a house and stayed with friends of Huxley.  (The appellant subsequently admitted that after the assault he stayed at the unit until he left with Huxley on the trip to Mt Spec with Mr McCabe in the boot of the car.)
     3. (c)
        In the police interview on 16 September, the appellant told police that he did not know how the boot was opened before Huxley and Rewha threw Mr McCabe into the boot.  (The appellant subsequently admitted that he opened the boot himself.)
     4. (d)
        In the police interview on 18 August, when the appellant was asked whether he was in the car at any time when police chased him three or four times in Ingham, the appellant responded that he was in the back seat and Huxley was driving.  (The effect of evidence given by officers Collins, Folett and Smith is that in the police chase on 17 August the appellant was driving the car and Huxley was in a different car.)
     5. (e)
        In the police interview on 18 September, the appellant said that he could not see Mr McCabe when Huxley threw rocks at him.  (The evidence that the appellant saw Huxley throwing rocks at Mr McCabe includes the evidence summarised in [87]-[89] of these reasons, the appellant’s statement to police on 17 September that “I know where the body is”,^[81] and the text “Thrown down”, “still”, and “Then slammed with rocks till Dead” in the diagram in the appellant’s handwriting which identifies where Mr McCabe was on the hillside at Mt Spec.)
111. [111]
     The prosecutor referred to other lies but relied only upon those five statements as lies demonstrating the appellant’s consciousness of his guilt of the offence of murder.  It was plainly open to the jury to find that each statement was a lie.  Defence counsel did not object to the prosecutor submitting to the jury that those five lies were evidence of the appellant’s guilt of the offence of murder or to the way in which the prosecutor addressed the jury upon that topic.
112. [112]
     The trial judge identified the lies and gave the following directions to the jury:

“Now, before you can use this evidence of alleged lies against the defendant Taylor, you must be satisfied of a number of matters.  Unless you are satisfied of all of these matters, then you cannot use the evidence against the defendant Taylor.  First, you must be satisfied that he has told a deliberate untruth.  There’s a difference between the mere rejection of a person’s account of events and finding that the person has lied.  In many cases where there appears to be a departure from the truth, it may not be possible to say that a deliberate lie has been told.  For example, was it possible for Taylor to see McCabe when Huxley was throwing rocks at him unless Taylor went down the hill and considering it was hours of darkness.  That’s just one example that I raise with you.  The defendant must – there are other reasons why an untruth may not be a lie.  The defendant might have been confused and there may have been other reasons to prevent you from finding that he has told a deliberate untruth.

Further you must be satisfied that the lies are concerned with some circumstance or event connected with the offence of murder.  You can only use a lie against a defendant if you are satisfied, having regard to those circumstances and events that reveal a knowledge of the offence or some aspect of it.

Thirdly, you must be satisfied that the lie was told because the defendant knew that the truth of the matter would implicate him in the commission of an offence of murder.  The defendant must be lying because he’s conscious that the truth could convict him.  There may be reasons for the lie apart from the realisation of guilt.  Some people have an innocent explanation for lying.  For example, a lie might be told out of shame or out of a wish to conceal embarrassment, embarrassing or disgraceful behaviour.  Or it might be told out of panic or confusion or to escape an unjust accusation or to protect some other person or to avoid a consequence not connected with the offence.

… And you will make up your own mind whether there were any inaccuracies or untruths, and whether of course such an inaccuracy or untruth was deliberate.  That is relevant if you conclude that it was deliberate only as to credibility of Mr Taylor.  It is for you to decide whether any untruth that you might detect affects credibility, however you should bear in mind this warning – do not follow a process of reasoning to the effect.  Just because a person is shown to have been told an untruth about something that is evidence of guilt.  The mere fact that Mr Taylor might have told an untruth is not itself evidence of guilt.

A person may tell an untruth for many reasons, for example, to bolster a true defence, to protect somebody else, to conceal disgraceful conduct of his own short of the commission of the offence of murder or out of panic or confusion.  If you think there is or maybe some other innocent explanation for any untruths you should take no notice of it.”^[82]

113. [113]
     The appellant did not seek any redirections about that topic.
114. [114]
     The appellant’s argument under the present ground of appeal is that the five lies were not “consciousness of guilt lies” and could not be used to reason towards guilt of murder.
115. [115]
     In Edwards v The Queen,^[83] the majority described what constitutes a lie of the kind that could be used as evidence of the appellant’s guilt.  The jury may use a lie for that purpose only if the lie has been “precisely identified”, it is “concerned with some circumstance or event connected with the offence” or “relates to a material issue”, and the lie “reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth),^[84] because of ‘a realization of guilt and a fear of the truth’.”  The five lies are identified with sufficient precision and the appellant does not make a submission to the contrary.
116. [116]
     The jury could find:

     1. (a)
        The first lie was told to conceal that on 15 August the appellant was present during, and participated in, the assaults at the unit and Mt Spec.
     2. (b)
        The second lie was told to conceal that the appellant was present and participated when Mr McCabe was put in the boot of the car and when he was taken to, and assaulted at, Mt Spec.
     3. (c)
        The third lie was told to conceal that the appellant had opened the boot into which the seriously injured Mr McCabe was placed and transported to Mt Spec.
     4. (d)
        The fourth lie was told to distance the appellant from the car he was in truth driving, knowing there might be traces of Mr McCabe in the boot as a result of his having been transported in it after he was injured at the unit.
     5. (e)
        The fifth lie was an attempt to conceal that the appellant went down the hill with Huxley and was present there when Huxley threw rocks on Mr McCabe.
117. [117]
     The general rule is that “it will be for the jury to decide, on the basis of the evidence as a whole, whether the post offence conduct of the accused is related to the crime before them”.^[85]  The lies are not to be considered alone, on a “piecemeal” basis, but as part of the totality of the circumstances established by the evidence upon this issue.^[86]  The significance of each lie may be regarded as having been enhanced by the circumstance that, so the jury could find, it formed one of a series of lies designed to conceal the appellant’s presence and conduct whilst Mr McCabe was held captive from when he was first attacked at the unit until his body was finally left at Mt Spec.  The jury could take into account that the appellant told the lies on serious occasions in the course of police interviews which occurred some considerable time after Mr McCabe was killed (days afterwards in the case of the first and third lies, and about a month afterwards in the case of the other lies).
118. [118]
     The jury could assess the significance of the lies upon a number of different bases, according to the jury’s assessment of the truth and reliability of the many admissions made by the appellant in the police interviews and the jury’s assessment of the evidence of the Crown witnesses.  In order to address the grounds of appeal it is sufficient to record that the jury could find that the appellant told the lies when he knew that he had been present and had seen Huxley and Rewha, or Huxley alone, cause the death of Mr McCabe either by their intentional infliction of grievous bodily harm at the unit, or when Huxley intentionally killed him by throwing large rocks on Mr McCabe at Mt Spec.  Upon that basis, and having regard to the immediate purpose of each lie described in [116] and the considerations in [117], it was open to the jury to conclude that the appellant was motivated in each case to conceal the truth because he feared that it would implicate him as a party in Huxley’s (or Huxley and Rewha’s) murder of Mr McCabe.
119. [119]
     Considering each lie together with each other lie and the other evidence in the Crown case, it was open to the jury to find that each of the lies was told because the appellant knew that the truth would implicate him in the offence of murder.

Ground 5: There was a failure to distinguish murder from other offending which might explain the lies relied upon by the Crown and which were the subject of an Edwards lies direction.

120. [120]
     The appellant argues that the trial judge should have directed the jury not to treat the lies as admissions in relation to the murder offence unless the jury excluded the possibility that the appellant told the lies out of a consciousness of his guilt of the lesser offence of manslaughter.
121. [121]
     No such direction was sought by defence counsel at the trial.  The question under this ground of appeal is whether the omission of the direction the appellant now contends was required was a “miscarriage of justice” in terms of s 668E(1) of the Code.  A trial judge is obliged to “adequately direct the jury both as to the law and the possible use of the relevant facts upon any matter upon which the jury could in the circumstances of the case upon the material before them find or base a verdict in whole or in part” and “put the jury with adequate assistance any matters on which the jury, upon the evidence, could find for the accused.”^[87]  In deciding whether the omission of a direction occasioned a miscarriage of justice, it is necessary to bear in mind that the trial judge’s summing up is “shaped by the way in which the trial is conducted and the issues that are live for the jury’s determination” and that the omission of defence counsel to seek the direction may support a conclusion that such a direction was not required in the particular context of the trial.^[88]
122. [122]
     The trial judge clearly and repeatedly directed the jury, both in writing in the question trail and orally in the summing up, upon the elements of murder and the elements of manslaughter.  In the directions about lies the trial judge clearly conveyed that the jury could not use the alleged lies against the appellant unless the jury was satisfied that the lie was told because the appellant knew that the truth would implicate him in an offence of murder, rather than in other disgraceful behaviour or conduct short of the offence of murder.  In the context of the summing up as a whole it is difficult to accept that the jury might have overlooked considering whether the appellant told the lies because he feared being implicated in some way in a killing that did not amount to a murder.
123. [123]
     The appellant cites R v Mitchell,^[89] R v Murray,^[90] and R v Trebeck.^[91]  In each of those cases the defendant was charged with murdering the victim in circumstances in which the defendant was alleged to have killed the victim and it was an issue at the trial whether the Crown proved beyond reasonable doubt that the defendant intended to kill or do grievous bodily harm.  Those cases support the submission that in cases of that kind the trial judge should direct the jury in express terms that the jury “could use a lie or some other post-offence conduct as evidence of murder, only after they had considered whether it was explicable as showing a consciousness of guilt of an unintentional killing of the deceased, but not necessarily murder.”^[92]  As Thomas JA observed in the same kind of case in R v Ali,^[93] however, in a passage that was quoted in each of the cited cases, the trial judge must “usually” refer the jury “to the possibility that the lie is equally explicable by consciousness of guilt of a lesser offence”.
124. [124]
     It may be accepted that it will ordinarily be prudent for trial judges to give the express direction in any case, but the question is whether the omission to give it in the particular circumstances of this case, including by reference to the directions that were given, amounted to a miscarriage of justice.
125. [125]
     This is a very different case from Mitchell, Murray and Trebeck.  The present case differs from but has some resemblance with R v Boscaino,^[94] in which Sofronoff P rejected an argument having some similarity with that presented in this case, upon the ground that the jury would have been perverse not to accept that the victim had been murdered and the real question was whether the defendant had participated in that murder.^[95]
126. [126]
     Neither the prosecution nor the defence contended for manslaughter.  The prosecutor did not address upon manslaughter.  He submitted to the jury that this was clearly a case of murder.  Defence counsel did not contradict the prosecutor’s submission that Huxley or Rewha had murdered Mr McCabe.  In defence counsel’s address to the jury he repeatedly referred to “the murder” of Mr McCabe.  That was an unsurprising approach in light of the many statements in the appellant’s police interviews to the effect that he was present when Rewha and Huxley embarked upon an extraordinarily violent and prolonged assault upon Mr McCabe at the unit, and, after a series of obviously calculated acts occupying hours, Huxley killed Mr McCabe by throwing large rocks on him.  The appellant’s admissions, upon which the Crown case was substantially based, convey that he had witnessed Huxley and Rewha intentionally do grievous bodily harm to Mr McCabe and Mr Huxley intentionally kill him.  The other possibility arising on the Crown case, that the appellant killed Mr McCabe himself by throwing a rock on him in the circumstances prevailing a very long time after the initial assault at the unit, was also redolent of an intentional killing.
127. [127]
     The main theme of defence counsel’s address apart from his challenge to Davison’s evidence, was that the appellant was present at the unit, and later on the trips to Mt Spec, only because the only person in town he knew, Huxley, had given him a room for the night, and the appellant became an unwilling, captive, and frightened witness to Rewha and Huxley’s extraordinarily violent and sustained assaults upon Mr McCabe at the unit and subsequently to Huxley’s murder of Mr McCabe at Mt Spec.
128. [128]
     Defence counsel challenged the Crown case that the appellant “somehow assisted Huxley or Rewha to inflict the injuries that killed him, knowing that he was assisting them to do that, knowing and intending to assist them to commit murder”.^[96]  After emphasising the isolation of the appellant from anyone he knew other than Huxley and the unwanted situation in which the appellant found himself, defence counsel invited the jury to conclude that Huxley had planned the assault upon Mr McCabe and had organised for Rewha to be at the unit for that purpose;  there was “a set-up then to assault Mr McCabe”.^[97]  (The effect of that submission was that the attack was not merely intentional, but premeditated.)  Defence counsel asked the jury to reject the Crown case that when the appellant went back with Huxley to Mt Spec the appellant “did anything knowingly or with the intention of aiding Huxley in murdering [Mr McCabe]”.^[98]  Defence counsel made many submissions to the jury to the effect that the appellant had not knowingly and intentionally aided “in the murder” of Mr McCabe.^[99]  He rhetorically asked the jury what they could point to that the appellant did or did not do to aid Huxley (“most likely”) “in the murder”:

“If the most likely scenario is that the murder occurred when Huxley propelled a couple of large rocks at Mr McCabe’s head, what did my client actually do?  Nothing.”^[100]

129. [129]
     Thereafter, defence counsel again referred to “the murder of Michael McCabe”.  Defence counsel submitted that the appellant might have been wrong in saying that he had closed the door, the appellant may have been an unwitting party to an assault when he hit Mr McCabe twice to get away from Mr McCabe, and the appellant did not inflict any significant injury upon Mr McCabe.  Defence counsel submitted that on the evidence the appellant did nothing at all on the second trip to Mt Spec when Huxley threw big rocks that were potentially consistent with the injuries described by Dr Samarasinghe.  All of this was consistent with defence counsel’s theme that Mr McCabe had been murdered but that the appellant had not killed him and had not been a party to Huxley’s murder of him.
130. [130]
     The last submission by defence counsel was that the jury should ask themselves what did the appellant do “to help in the murder of Michael McCabe”, and they should answer the question, “Nothing” and find the appellant not guilty accordingly.
131. [131]
     Immediately before that closing submission, defence counsel submitted that the jury might want to “consider” the levels of methylamphetamine intoxication “on behalf of Huxley, as has been described, on behalf of my client”, the trial judge would give directions about that, the trial judge would tell the jury about the specific intent required for murder, and if the jury found that there was no specific intention there was a defence open to the appellant that that he had acted under duress in fear of Huxley.  In that tentative submission, about what the jury might want to consider, defence counsel did not positively submit that Huxley might actually have been intoxicated by methamphetamine or for that reason might not have intended to cause at least grievous bodily harm when he assaulted Mr McCabe at the unit or at Mt Spec.  Nor, in relation to the assault at the unit, did defence counsel ask the jury even to consider whether Rewha was intoxicated or might not have intended grievous bodily harm.
132. [132]
     The trial judge recorded defence counsel’s submission that the jury would not accept that the prosecution had proved beyond reasonable doubt that the appellant had relevantly aided either Huxley or Rewha “in their murdering McCabe”.^[101]  Defence counsel did not seek any redirection about that way of describing his submission.
133. [133]
     The trial judge appropriately directed the jury about the intent element of murder.  The trial judge also gave directions about manslaughter which are not criticised.  The trial judge read to the jury question 5 of the question trail (concerning the intent of Huxley and Rewha) and adverted to the possibility of a verdict of manslaughter (the subject of questions 9 – 13 in the question trail) if the jury answered “no” to question 5, and explained to the jury that an alternative verdict of guilty of manslaughter was open “[a]s a matter of law”.^[102]  Consistently with the way in which the trial had been conducted, however, the trial judge reminded the jury that neither the prosecution nor the defence contended for manslaughter.  The trial judge observed that the jury might wonder why he adverted to the prospect at all and explained that the law obliged him to do so and the fact that he had mentioned manslaughter did not mean that he had a view about such a verdict.
134. [134]
     Contrary to defence counsel’s prediction in his submissions to the jury, the trial judge did not direct the jury about the effect of methylamphetamine intoxication upon the capacity of Huxley to form an intention to kill or to do grievous bodily harm.^[103]  No redirection was sought.  The absence of such a direction is not criticised in this appeal.  That aspect of the conduct of the trial and the appeal is explicable by the generality of the evidence about Huxley’s consumption of methylamphetamine, which did not suggest that it might have affected his capacity to form the intent necessary for murder, an intent which was proved against the appellant by inference from his own admissions.  Upon an objective analysis, it also suited the main theme of defence counsel’s address to the jury, an aspect of which was that the appellant was too frightened of Huxley to say or do anything in opposition to him, that Huxley be portrayed as a cold blooded murderer.
135. [135]
     The terms in which the trial judge directed the jury to take into account possible explanations for the lies falling short of consciousness of guilt of murder reflected the way in which the case was conducted at trial.  Having regard also to the circumstance that defence counsel was evidently satisfied that the trial judge’s directions were adequate, I am not persuaded that the directions were rendered inadequate by the absence of express reference to manslaughter.  There was therefore no miscarriage of justice in terms of ground 5.

Ground 6: A miscarriage of justice was occasioned by the failure of the learned trial judge to direct the jury with regard to their use of other post-offence conduct to reason towards guilt.

136. [136]
     Under ground 6, the appellant argued that a miscarriage of justice was occasioned by the absence of an “Edwards direction” in relation to the document headed “What I want you to say”, which, Davison gave evidence was written and given to him by the appellant.  The appellant described this as a “false alibi” written by a fraudster to ensure he had some material to take to the authorities.^[104]  As the appellant submitted, the effect of the document was a request to Davison for a false alibi that the appellant was not at Mt Spec at the relevant times.  The appellant submitted that it was necessary for an “Edwards direction” to be given about this document, particularly because very similar lies were relied upon by the Crown as “Edwards lies”.
137. [137]
     This point was not taken by defence counsel at the trial.  Whether or not the absence of the direction for which the appellant contends was a miscarriage of justice again turns upon an analysis of the summing up as a whole and the way in which the trial was conducted.
138. [138]
     It was not in issue at the trial that the document was written by the appellant and given to Davison.  Nor was it in issue that the text amounted to a request by the appellant for Davison to give the appellant an alibi that falsely suggested that the appellant had not been to Mt Spec with Huxley.  Defence counsel relied upon the evidence that the appellant had limited literacy and was very poor at spelling.  (There was an example of the appellant’s inability to spell a simple word during a police interview and testimony by Ms Winter, who had been in a long term relationship with the appellant, that he was not very good at reading and writing and he could not spell basic words.)  The defence case was that Davison caused the appellant to write out the document for Davison’s purposes.  The document was said to be so tainted by Davison’s dishonest motive that the jury should not accept it.  The prosecutor pointed out that the false alibi did include a significant misspelling and argued that, although the appellant had some trouble reading or writing, it did not follow that he was incapable of planning or seeking to save himself.
139. [139]
     The appellant referred to a submission to the jury by the prosecutor that the false alibi was evidence that the appellant did not want to be connected with having written on the diagram (of which Davison also gave evidence) “slamming him with a rock until he was dead”, which is what the appellant was at Mt Spec to do.  The appellant argues that the Crown thereby relied upon the appellant’s attempt to create a false alibi, indicating a consciousness of guilt, such that directions should have been given about it.
140. [140]
     As was submitted for the respondent, the directions now submitted to have been necessary would have proceeded upon the hypothesis, contrary to defence counsel’s only argument upon the point, that the appellant, rather than Davison, was responsible for the content of the false alibi.  Upon an objective analysis, there was the potential for serious disadvantage to the appellant if, upon the hypothesis that the appellant was responsible for the false alibi document, the trial judge focussed the jury’s attention upon the question whether the appellant sought to encourage Davison to tell a deliberate untruth about whether the appellant had been to Mt Spec and whether such a deliberate untruth betrayed a consciousness of guilt of murder.  In light of the appellant’s admissions and defence counsel’s conduct of the defence on the basis that the appellant was at Mt Spec when Huxley murdered Mr McCabe, it was a rational forensic judgment for defence counsel to seek to explain away the false alibi document as having been procured by Davison and to refrain from seeking a direction which would direct the jury’s attention upon the evidence that the appellant was responsible for that document and upon his motive for producing it.
141. [141]
     Again having regard to the fact that this this point was not raised by defence counsel at the trial and to the way in which the trial was conducted,  as discussed in relation to ground 5 and this ground, I am not persuaded that the direction for which the appellant now contends was necessary for a fair trial.  The absence of such a direction did not amount to a miscarriage of justice.

Order

142. [142]
     I would dismiss the appeal.
143. [143]
     MULLINS JA:  I agree with Fraser JA.
144. [144]
     APPLEGARTH J:  I agree with the reasons of Fraser JA and with the order proposed by his Honour.