It is a commonplace observation that people who are good at reading might come to different interpretations of the same text.
Also, it is not unusual in a joint trial for different defendants to react differently to the evidence of a witness. The witness might give evidence that incriminates one defendant while exculpating another.
Both these points are illustrated in Huxley v The Queen [2023] HCA 40.
The trial judge had thought that it would be “madness … leading to total confusion” and “gibberish” [17] to require the jury to apply different standards of proof to the evidence of a witness depending on which defendant’s case they are considering.
The judge was so plainly wrong about that, I suggest, that it is surprising that the prosecutor (who would be just as concerned as defence counsel that the trial should be conducted according to law) did not offer a suggestion to avoid the possibility of any error by the judge when directing the jury.
The point was that when considering the evidence which was central to the prosecutor’s case the jury had to be satisfied of its truth beyond reasonable doubt, but when considering the same evidence as part of the case for a co-defendant they had only to ask whether it raised a reasonable doubt as to the guilt of that co-defendant.
The judge got the first requirement right, and this appeal was about the question of law as to whether the second requirement was satisfied upon a consideration of the summing up as a whole.
This comprehension exercise produced different answers, the Court splitting 2-3. The majority, Gordon, Steward and Gleeson JJ, held that the judge had made no error of law and the appeal was dismissed. The minority, Gageler CJ and Jagot J, considered that the error had been made and that there should have been a new trial. The majority placed significance on the absence of any request by defence counsel for a re-direction [92]ff. The point had been raised in chambers before the evidence in the trial had been concluded, and defence counsel may have thought the judge had ruled on the point [29].
It is at that early stage, when the potential difficulty was raised in chambers before the conclusion of all the evidence, that help from the prosecutor could have ensured a clear judicial direction and avoided the need for this appeal.
The use of question trails (setting out questions for the jury to answer among themselves as they work towards verdicts) could have helped avoid confusion here. Was the jury in a position to consider “as a whole” (heading at [68]) a summing up that lasted from the middle of one day to the late afternoon of the next day [18]? If not, is the more leisurely consideration of a transcript of the summing up - here extending to 93 pages - by appellate judges, relevant? Are juries better at comprehension than appellate judges? If five senior judges can't agree on understanding the summing up, should we expect 12 jurors to have agreed on it?
