The High Court has clarified that, when determining appeals against conviction, a materiality threshold must be met before an appeal based on a wrong decision on a question of law is allowed.
The identified wrong decision must involve an error that could realistically have affected the reasoning of the judge or jury in delivering a verdict of guilty in the trial. This threshold is not a high bar.
Note: this decision should be read in conjunction with the High Court decision of Brawn v The King [2025] HCA 20, which confirmed that the materiality threshold also applies to identified errors or irregularities in criminal trials. We have reviewed this in 'Realistic risk, real consequences: High Court on disclosure failures'.
MDP was tried by jury in the District Court of Queensland and convicted of sexual offences against his stepdaughter.
The Crown led evidence that the appellant ‘smacked’ the complainant's backside as evidence of his sexual interest in the complainant. This evidence was admitted without objection.
The trial judge issued a direction to the jury stating that it was open to them to use the smacking evidence as propensity evidence if they were ‘satisfied beyond reasonable doubt that [MDP] did act as the evidence suggests, and that that conduct does demonstrate that he had a sexual interest in the complainant …’.
MDP appealed to the Court of Appeal of the Supreme Court of Queensland via the second limb of s 668E(1) of the Criminal Code (QLD) (also known as the common form criminal appeal provision), asserting that a miscarriage of justice had been occasioned by the admission of the smacking evidence and the direction to the jury.
The second limb of s 668E(1) requires that the Court of Appeal hearing an appeal against conviction ‘shall allow the appeal if it is of opinion that ... the judgment … should be set aside on the ground of the wrong decision of any question of law’. This provision corresponds to s 6(1) of the Criminal Appeal Act 1912 (NSW).
The Court of Appeal dismissed the appeal, concluding the evidence was admissible under s 132B of the Evidence Act 1977 (Qld) (now repealed) as evidence of the degree of familiarity of the domestic relationship. Therefore, the admissibility of the smacking evidence did not turn on its capacity to support a finding that the appellant had a sexual interest in the complainant [82]. The Court of Appeal inferred that the conduct of counsel for MDP, in failing to oppose the direction to the jury, was calculated to take ‘forensic advantage’ [5].
MDP appealed to the High Court and contended that the admission of the smacking evidence and the giving of the direction to the jury were wrong decisions on a question of law.
The High Court unanimously held that no decision on a question of law occurred when the smacking evidence was admitted [5], but that that the trial judge, in issuing the direction to the jury, had made a wrong decision on a question of law [32].
The High Court unanimously agreed that there is a materiality threshold that must be met before allowing a conviction appeal. In this case, the threshold required the appellant to establish that the direction given in error (the wrong decision) could realistically have affected the reasoning of the jury in coming to a guilty verdict [11]. The majority of Gageler CJ, Edelman, Gordon and Steward JJ found that the wrong decision on the question of law made by the trial judge met the materiality threshold [33].
The majority then considered the proviso in s 668E(1) and held that they could not determine that no substantial miscarriage of justice actually occurred [38]-[39]. The appeal was allowed, and a new trial was ordered.
The decision demonstrates the application of the second limb of the common form appeal provision, and that it must be established that the wrong decision on a question of law was ‘in some way’ material [97].
The test for materiality presents a very low bar to the identification of a miscarriage of justice [46], increasing the risk of re-trial where the defendant appeals on wrong decisions on a question of law.
Claudia Pendlebury, Director
claudia.pendlebury@cso.nsw.gov.au
Maeve Browne, Paralegal
maeve.browne@cso.nsw.gov.au
The CSO's Regulatory & Environment practice group specialises in advising and representing agencies in relation to regulatory compliance and prosecutions, statutory interpretation advice in the environment and natural resources context, as well as criminal law, evidence and procedure.
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