MDP v The King

Case [2025] HCA 24

HIGH COURT OF AUSTRALIA

GAGELER CJ,
GORDON, EDELMAN, STEWARD, GLEESON, JAGOT AND BEECH‑JONES JJ

MDP  APPELLANT

AND

THE KING  RESPONDENT

MDP v The King

[2025] HCA 24

Date of Hearing: 3 December 2024
Date of Judgment: 18 June 2025

B72/2023

ORDER

1.Grant special leave to appeal to raise grounds 2 to 4 of the amended notice of appeal filed on 14 June 2024.

2.Appeal allowed.

3.Set aside the order made by the Court of Appeal of the Supreme Court of Queensland on 27 June 2023 and, in its place, the appellant's appeal to the Court of Appeal be allowed, his convictions set aside, and a new trial ordered.

On appeal from the Supreme Court of Queensland

Representation

S C Holt KC with S J Hedge for the appellant (instructed by Jasper Fogerty Lawyers)

G J Cummings with S J Muir for the respondent (instructed by Office of the Director of Public Prosecutions (Qld))

R J Sharp KC with T M Wood for the Commonwealth Director of Public Prosecutions, intervening (instructed by Office of the Director of Public Prosecutions (Cth))

B A Hatfield SC with E R Nicholson for the Director of Public Prosecutions (NSW), intervening (instructed by Solicitor for Public Prosecutions (NSW))

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

MDP v The King

Criminal practice – Appeal – Wrong decision on question of law – Where appellant convicted of sexual offences – Where Crown led evidence of appellant smacking complainant's backside as evidence of sexual interest – Where direction to jury permitted use of that evidence as propensity evidence – Where appellant's trial counsel did not object to admission of evidence or to direction – Whether admission of evidence wrong decision on question of law – Whether direction wrong decision on question of law – Whether wrong decision on question of law has materiality threshold – Whether direction material – Whether substantial miscarriage of justice.

Words and phrases – "appeal", "common form criminal appeal provision", "conduct of counsel", "context evidence", "could realistically have affected the reasoning of the jury to a verdict of guilty", "decision", "decision over objection", "direction to the jury", "error or irregularity", "evidence of sexual interest", "failure to object", "fundamental", "inadmissible evidence", "materiality", "misdirection", "Pfennig direction", "Pfennig test", "propensity direction", "propensity evidence", "propensity reasoning", "proviso", "question of law", "relationship evidence", "rule in Pfennig", "second limb", "sexual interest", "sexual offence", "substantial miscarriage of justice", "trial counsel", "wrong decision", "wrong decision on a question of law".

Criminal Code (Qld), s 668E.

  1. GAGELER CJ.   This appeal from the judgment of the Court of Appeal of the Supreme Court of Queensland in R v MDP[1] was heard contiguously with the appeal from the judgment of the Court of Appeal of the Supreme Court of South Australia in Brawn v The King[2] in order to facilitate consideration of issues unresolved in Weiss v The Queen[3] concerning the…

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AGLC
MDP v The King [2025] HCA 24
Case
[2025] HCA 24
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard an appeal by MDP against his convictions for sexual offences. The convictions arose from a trial in the District Court of Queensland where the appellant was found guilty by a jury of 16 counts of sexual offences against his stepdaughter. The prosecution had led evidence from the complainant's sister, K, that the appellant had smacked the complainant's backside. This evidence was admitted without objection and the trial judge directed the jury that they could use it as evidence of the appellant's sexual interest in the complainant and his preparedness to act on it.

The central legal issues before the High Court were whether the trial judge's direction to the jury, permitting the use of K's evidence as propensity evidence, constituted a "wrong decision on a question of law" under section 668E(1)(ii) of the Criminal Code (Qld). The court was also required to consider whether such a wrong decision had the necessary materiality threshold to establish a substantial miscarriage of justice, and if the proviso under section 668E(1A) of the Criminal Code (Qld) applied, meaning no substantial miscarriage of justice had actually occurred. The admissibility of K's evidence itself, as relationship evidence, was also a point of contention, with it being accepted that the Court of Appeal had erred in finding it admissible under section 132B of the Evidence Act 1977 (Qld).

The High Court reasoned that while the trial judge's direction regarding the use of K's evidence as propensity evidence was a wrong decision on a question of law, it did not meet the materiality threshold required to establish a substantial miscarriage of justice. The court found that this decision was not fundamental to the trial and could not realistically have affected the jury's reasoning to a guilty verdict. Furthermore, the court determined that the proviso under section 668E(1A) of the Criminal Code (Qld) could not be applied to dismiss the appeal, as an independent assessment of the evidence to conclude guilt beyond reasonable doubt was not possible given the contested issues of credit and the absence of the full trial record.

Consequently, the High Court granted special leave to appeal, allowed the appeal, set aside the order of the Court of Appeal of Queensland, and in its place, allowed the appellant's appeal to the Court of Appeal, setting aside his convictions and ordering a new trial.

Orders

Orders of the court

1. Grant special leave to appeal to raise grounds 2 to 4 of the amended notice of appeal filed on 14 June 2024.

2. Appeal allowed.

3. Set aside the order made by the Court of Appeal of the Supreme Court of Queensland on 27 June 2023 and, in its place, the appellant's appeal to the Court of Appeal be allowed, his convictions set aside, and a new trial ordered.

Background

Background to the litigation

In this case, there was a wrong decision by the trial judge on a question of law. The decision was embodied in the trial judge's direction to the jury that permitted the use of evidence given by the complainant's sister ("K") that the appellant smacked the complainant's backside as evidence demonstrating that the appellant had a sexual interest in the complainant and was prepared to act on it. However, as will be explained, that decision was not in respect of a question of law that was material in that it was not fundamental to the trial and could not realistically have affected the reasoning of the jury to the verdict in the trial that was had. Accordingly, the second limb is not satisfied. For the same reasons, the admission of that evidence, and the giving of that direction, do not satisfy the materiality threshold to establish a miscarriage of justice within the meaning of the third limb.[95] Accordingly, the appeal must be dismissed. [95]See Brawn [2025] HCA 20 at [10].Background After a trial in the District Court of Queensland, the appellant was convicted by a jury of all 16 counts of an indictment alleging he committed sexual offences against his stepdaughter between 2014 and 2019 when she was between 7 and 12 years of age. The complainant gave direct evidence of the commission of those offences. The prosecution also adduced evidence from K to the effect that she observed the appellant smack the complainant's backside in circumstances that did not suggest that any administration of discipline was involved ("K's evidence"). K's evidence was admitted without objection. The appellant gave evidence denying the charges. He said that he smacked all the children, including the complainant, not for any sexual purpose but for the purpose of disciplining them or moving them out of the way. In the circumstances described below, the prosecution sought, and the trial judge gave the jury, a propensity direction in respect of the complainant's evidence of the charged acts and K's evidence. The appellant appealed his convictions to the Court of Appeal (Mullins P, Morrison JA and Henry J). One of the appellant's grounds of appeal before the Court of Appeal was that the trial judge's propensity direction in respect of K's evidence occasioned a miscarriage of justice. The Court of Appeal observed that the admissibility of K's evidence did not turn upon its capacity to support a finding that the appellant had a sexual interest in the complainant because it was otherwise admissible under the former s 132B of the Evidence Act 1977 (Qld) as evidence of the degree of familiarity of the domestic relationship between the appellant and the complainant. In this Court, it was accepted that s 132B was not engaged because the trial of the appellant was not a criminal proceeding for an offence defined in Chapters 28 to 30 of the Criminal Code.[96] [96]Evidence Act 1977 (Qld), s 132B(1). The appellant was convicted of four counts under s 349(1) (Chapter 32) of the Criminal Code (Qld), one count under s 210(1)(b) (Chapter 22), one count under s 229B(1) (Chapter 22) and ten counts under s 210(1)(a) (Chapter 22). See Roach v The Queen (2011) 242 CLR 610.

Evidence

Evidence Before The Court

In this appeal, the Crown relied upon the proviso, asserting that the appeal should nevertheless be dismissed because there was no substantial miscarriage of justice. That would require this Court to conclude, upon its independent assessment of the trial record, that absent the erroneous direction a verdict of guilty was, or is, inevitable. Even apart from the absence of the complete record of the trial in this Court, such a conclusion is impossible in respect of a trial in which the central issues concerned the credibility of the complainant and MDP and which proceeded on the basis that the inadmissible bottom slapping evidence could assist the jury in their resolution of the case. The bottom slapping evidence and the direction MDP's ground, and proposed grounds, of appeal in this Court asserted that a miscarriage of justice had occurred in two ways. One way was by the admission of the bottom slapping evidence. The other way was by the trial judge's direction to the jury that they could use propensity reasoning in respect of uncharged sexual conduct by MDP. MDP submitted that each of these two asserted miscarriages of justice was both an error of law (the second limb of s 668E(1) of the Criminal Code) and a miscarriage of justice generally (the third limb of s 668E(1) of the Criminal Code). The bottom slapping evidence and the trial judge's direction are fully set out in the reasons of Gordon and Steward JJ. It suffices to explain why this appeal can be decided on the ground concerning the trial judge's erroneous direction constituting a wrong decision on a question of law rather than by reference to the erroneous admission of the bottom slapping evidence. It was common ground in this Court that the Court of Appeal erred in so far as it concluded that the evidence was admissible under s 132B of the Evidence Act 1977 (Qld) (as in force at the time of the trial and subsequently repealed[59]).[60] That section was not concerned with evidence in relation to the offences with which MDP was charged.[61] There was also no suggestion that the bottom slapping evidence was admitted by consent. In this Court, the only ground upon which the Crown asserted that the bottom slapping evidence was admissible was on the basis that it was relationship evidence. [59]See Domestic and Family Violence Protection (Combating Coercive Control) and Other Legislation Amendment Act 2023 (Qld), ss 64, 68. See also Evidence Act 1977 (Qld), s 103CB.[60]See R v MDP (2023) 309 A Crim R 63 at 69-70 [29].[61]Criminal Code (Qld), ss 210, 229B, 349. See Evidence Act 1977 (Qld), s 132B(1). Evidence can be admissible as relevant relationship evidence, subject to grounds for exclusion, if the evidence can provide relevant context for other evidence. For instance, relationship evidence might "place the offence in context in circumstances in which evidence of the offence might otherwise present as inexplicable" or it might explain the complainant's "failure to complain or to rebuff the accused" or the "accused's confidence to act" as they did.[62] [62]Johnson v The Queen (2018) 266 CLR 106 at 116 [19].

Decision

Reasons for decision

GAGELER CJ GORDON AND STEWARD JJ EDELMAN J GLEESON, JAGOT AND BEECH-JONES JJ
In this case, even accepting that the Crown had a compelling case, the proviso cannot be applied. This Court cannot make an independent assessment of the evidence and determine whether, "making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty".[48] This Court cannot make an independent assessment of whether each guilty verdict was inevitable.[49] The Crown case involved contested issues of credit in relation to MDP and the complainant, which "prevent the appellate court from being able to assess whether guilt was proved to the criminal standard".[50] This Court does not have the entire record before it. It cannot be said that no substantial miscarriage of justice has actually occurred.[48]Weiss (2005) 224 CLR 300 at 316 [41] (footnote omitted).[49]Baini (2012) 246 CLR 469 at 481 [32].[50]Kalbasi v Western Australia (2018) 264 CLR 62 at 71 [15].Conclusion and orders For those reasons, MDP should be granted special leave to appeal to raise grounds 2 to 4 of the amended notice of appeal filed 14 June 2024. The appeal should be allowed. The order of the Court of Appeal of the Supreme Court of Queensland of 27 June 2023 should be set aside and, in its place, the appeal should be allowed, MDP's convictions set aside, and a new trial ordered. Introduction Section 668E(1) of the Criminal Code (Qld) is in a common form. It relevantly provides that on an appeal against conviction, the court "shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground":"[(i)] that [the verdict] is unreasonable, or can not be supported having regard to the evidence, or[(ii)] that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or[(iii)] that on any ground whatsoever there was a miscarriage of justice". These three "limbs" are then followed by a proviso that the court may nevertheless "dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred".[51] [51]Criminal Code (Qld), s 668E(1A). The overarching principle in relation to each of the three limbs is that each is concerned with a miscarriage of justice.[52] Although the third limb "speaks of miscarriage of justice specifically",[53] it is a catch-all provision to ensure that every instance of miscarriage of justice that is not included within the first two limbs is nevertheless captured within the appeal provision. Hence, it has been said that the "principles concerning the approach to a misdirection of law apply in the same way whether the misdirection is characterised as an 'error of law', as a 'miscarriage of justice', or as a 'wrong decision of any question of law'".[54] [52]Whitehorn v The Queen (1983) 152 CLR 657 at 685. See also Festa v The Queen (2001) 208 CLR 593 at 653 [199]; Libke v The Queen (2007) 230 CLR 559 at 589 [81]; Filippou v The Queen (2015) 256 CLR 47 at 54 [13]. [53]Whitehorn v The Queen (1983) 152 CLR 657 at 685. [54]Huxley v The Queen (2023) 98 ALJR 62 at 72 [42]; 416 ALR 359 at 371 (footnote omitted).

Ratio Decidendi

Legal Principle Established

Established by: GAGELER CJ, GORDON AND STEWARD JJ, EDELMAN J, GLEESON, JAGOT AND BEECH-JONES JJ

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