Appellate Criminal Law
Wrong decision on question of law: Miscarriage of justice
The appeals of Brawn v The King [2025] HCA 20 (Brawn) (7 May 2025) and MDP v The King [2025] HCA 24 (MDP) (18 June 2025) were heard contiguously to resolve issues arising from the application of Weiss v The Queen (2005) 224 CLR 300.
MDP dealt principally with the “second limb” of the “common form” of criminal appeal, being an appeal against conviction on the basis of a wrong decision on a question of law (at [9]).
Brawn dealt principally with the “third limb” of the common form of criminal appeal, being an appeal against conviction on the basis of a miscarriage of justice.
MDP v The King
In MDP, the High Court allowed an appeal from the Court of Appeal of the Queensland Supreme Court, set aside the convictions and ordered a new trial. Evidence of a witness, “K”, that the accused had smacked the complainant “on the bum” (the so-called “bottom slapping evidence”) when they had not done anything wrong was adduced without objection.
The trial judge, in summing up, directed the jury that they could only use the bottom slapping evidence if they were satisfied beyond reasonable doubt that the accused did as the evidence suggested and that the accused had a sexual interest in the complainant and was willing to pursue it. There was also no objection to this direction.
The High Court cited Roach v The Queen (2011) 242 CLR 610 and the discussion of the rule in Pfennig v The Queen (1995) 182 CLR 461.
The High Court held that there was no wrong decision on a question of law when the trial judge allowed the slapping evidence without objection. However, while there was no objection to the direction, the High Court found that it was a wrong decision on a question of law to direct the jury that they could treat the slapping evidence as evidence of the accused to have a propensity to have an interest in the complainant:
“The wrong decision was to tell the jury that it was open to them to consider that the bottom slapping (if they accepted that it had happened) showed a sexual interest on which MDP was prepared to act” (at [35]).
Brawn v The King
In Brawn, the High Court unanimously allowed an appeal from the South Australian Supreme Court.
Brawn (appellant) was convicted by a jury in the District Court of South Australia of maintaining an unlawful sexual relationship with a child under the age of 17 years, being a child between the ages of 5 and 8 years.
At issue in appeal was whether the perpetrator was the accused or another member of the complainant’s community. One witness gave evidence that the complainant said she was abused by her “uncle”. Like other children, the complainant referred to other elder male members of the community, as well as the appellant’s father, as “uncle” (at [1]).
Brawn appealed the conviction on the basis that the prosecution had breached their duty by failing to disclose that his own father had been charged with committing unlawful acts against a teenage girl during the period of indictment.
The Court of Appeal held that there was no miscarriage of justice because it had not been demonstrated that, had the disclosures been made, the defence would or might have been conducted differently.
The High Court stated:
“[W]here it has been shown that there was error or irregularity in a criminal trial, such as the breach of the prosecution’s duty of disclosure that occurred in this case, then to establish a miscarriage of justice it must be shown that the error or irregularity was material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to its verdict” (at [3]).
The High Court held that the Court of Appeal erred in requiring it to be demonstrated that the trial would have been conducted differently but for the error or irregularity and erred in failing to conclude that a miscarriage of justice had occurred.
Criminal Procedure
Appellate criminal law: Revocation of special leave
In The King v Batak [2025] HCA 18 (7 May 2025),the High Court by majority revoked special leave to appeal a decision from the NSW Court of Criminal Appeal to the High Court.
The sole ground of appeal from the Court of Criminal Appeal was that the trial judge had erred in permitting constructive murder to be left to the jury on the basis of accessorial liability (at [1]).
The Crown argued that the required mental element for that offence is that:
“[T]he accessory must know or believe at the time of giving assistance or encouragement … that the principal would do the act causing death, as a means of effecting the venture, should the occasion arise, and with this knowledge the accessory must intentionally assist or encourage the principal” (at [9]).
The defence challenged this and sought leave to raise, by Notice of Contention, whether the trial judge directed the jury with the “requisite state of mind” (at [10]). The Crown conceded that the trial judge did not direct the jury with what it had sought to argue in the High Court was the requisite state of mind.
Following this, the appeal was listed for a directions hearing, and the Crown was invited to make submissions at the time listed for hearing as to why the special leave to appeal should not be revoked (at [14]).
Given that was no real dispute that the respondent’s conviction could not be sustained and the concession that a new trial was necessary, it was not in the interests of justice for the appeal to be held. The appeal could not be sustained, and special leave to appeal was revoked.
