How Brawn v The King and MDP v The King Changed the Law on the Common Form Appeal Provisions

Introduction

In 2025 the High Court decided two important appeals, Brawn v The King [2025] HCA 20; (2025) 99 ALJR 876 and MDP v The King [2025] HCA 24; (2025) 99 ALJR 969, to resolve unsettled questions about Australia’s common form criminal appeal provisions. The appeals were heard on two consecutive days before a full bench in December 2024, both having been granted special leave on the apparently simple question of what constitutes a “miscarriage of justice”. MDP also raised the question of what constitutes a “wrong decision on a question of law” which is also a ground of appeal in criminal cases.

The Court held that both the “wrong decision on a question of law” and the “miscarriage of justice” limbs of the common form appeal provisions were subject to a materiality criterion.  That is, there will be no miscarriage of justice, and no operative error on a question of law unless each was “material” in the context of the trial that took place.  The decisions have brought order to multiple different formulations of the test by the Court on the question of miscarriage and created consistency between the appeal limbs. The Court identified a practical, four step framework for assessing each limb. In MDP, the Court also held that when a trial judge wrongly directs a jury on an issue of law, that will be a “wrong decision on a question of law” regardless of whether there was any contest about the direction at trial.  By so doing, the Court has strengthened the trial judge’s positive obligation to give correct directions of law.[2]

The result is a more uniform and practical doctrine that will affect how many conviction appeals are argued and decided. The core formulation—whether the error or irregularity “could realistically have affected the reasoning of the jury to the verdict of guilty that was returned”[3]—now anchors both limbs, subject only to the special category of “fundamental error” and the distinct (but diminished) role of the proviso.

The common form appeal provisions: background and pre-2025 tensions

The common form provisions appear (with minor drafting differences) across almost all Australian jurisdictions (Victoria being the notable exception).  For instance, s 158(1)–(2) of the Criminal Procedure Act 1921 (SA) and s 668E of the Criminal Code (Qld).  Under the common from provisions, intermediate appellate court must allow a conviction appeal if one of three limbs is demonstrated: (1) the verdict is unreasonable; (2) there has been a wrong decision on a question of law; or (3) there has been a miscarriage of justice. This is subject to the escape valve of the “proviso” under which the Court may nonetheless dismiss the appeal if satisfied that no substantial miscarriage of justice occurred.[4]

As to the third limb, in Weiss v The Queen (2005) 224 CLR 300 (Weiss), a joint judgment of Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ held that a miscarriage of justice meant “any departure from trial according to law, regardless of the nature or importance of that departure”.[5] That approach was repeated in a number of cases and affirmed by the majority of Kiefel CJ, Bell, Keane and Gordon JJ in Kalbasi v Western Australia (2018) 264 CLR 62, who said at 69-70 [12] “Consistently with the long tradition of the criminal law, any irregularity or failure to strictly comply with the rules of procedure and evidence is a miscarriage of justice within the third limb of the common form provision.” These formulations powerfully indicated that there was no question of materiality to be asked or answered under this limb.

But in other cases, judges or groups of judges required a level of materiality before an error or irregularity would be a miscarriage of justice. For example, in Hofer v The Queen (2021) 274 CLR 351, the majority of Kiefel CJ, Keane and Gleeson JJ stated that “A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused”, adding those emphasised words to the formulation from Weiss. Justice Gageler (as His Honour then was) held that the “miscarriage of justice” requires consideration of, and ordinarily satisfaction of, “a significant possibility that the acts or omissions of which complaint is made affected the outcome of the trial”.[6]

In Edwards v The Queen (2021) 273 CLR 585 Edelman and Steward JJ explained that “any departure from a trial according to law” in the Weiss sense means an erroneous occurrence with ‘the capacity for practical injustice” or which is “capable of affecting the result of the trial”.[7] Then in HCF v The Queen (2023) 97 ALJR 978 at 981-982 [2] the majority (Gageler CJ, Gleeson and Jagot JJ), without discussion of Weiss, Kalbasi, GBF or Hofer,referred with approval to a summary of the circumstances in which a miscarriage of justice would occur given by Beech-Jones CJ at CL (as his Honour then was) in Zhou v The Queen  [2021] NSWCCA 278 at [22], which listed a number of the formulations above.

In MDP v The Queen, the appellant submitted that the state of the authorities was unclear on this fundamental question and argued that the Court should reaffirm the test in Weiss leaving questions of materiality to the proviso stage of the appellate inquiry. The Commonwealth Director of Public Prosecutions and New South Wales Director of Public Prosecution applied (and were granted leave) to intervene, contending that the question was a matter of general importance on which they wished to be heard. Later in 2024, Brawn was given leave on the same point.

While the third limb (miscarriage of justice) has received a lot of attention on the question of materiality, the second limb (question of law) had enjoyed comparatively little. However, inconsistency had arisen in caselaw as to whether there can be a “wrong decision on a question of law” if a trial judge was not asked by the parties, by objection or request for direction or redirection to make a ruling on a matter of law.

In Simic v The Queen (1980) 144 CLR 319, the Court (Gibbs, Stephen, Mason, Murphy and Wilson JJ) held that cases where there had been a wrong decision on a question of law “would include those in which there has been a misdirection as to the law or in which evidence has been improperly admitted or rejected.”[8]

However, in Papakosmas v The Queen (1999) 196 CLR 297, McHugh J said that there is no wrong decision on a question of law if the appellant has failed to object to evidence or ask for a redirection.[9] No majority of the Court endorsed that statement. Gaudron and Kirby JJ in a joint judgment disagreed with McHugh J.[10] In Dhanhoa v The Queen (2003) 217 CLR 1, McHugh J made a similar statement, writing with Gummow J.[11]

Those statements in Papakosmas and Dhanhoa were taken up by some intermediate courts of appeal, holding that if there was no objection to evidence or a request for redirection, then the second limb was not available and the only basis to appeal was for a miscarriage of justice.[12]

On the other hand, in Gassy v The Queen (2008) 236 CLR 293 at [55]-[56] Kirby J said in the context of a trial conducted by a self-represented person it seemed highly artificial not to consider the directions given by the judge to involve a decision.

Some other intermediate courts of appeal agreed, holding that a misdirection on a matter of law is a wrong decision on a question of law regardless of whether counsel objected to the direction.[13]

This brief account shows that the interpretation of these two limbs of the common form appeal provisions were ripe for clarification by the High Court. Indeed, after Special Leave was granted in MDP only on the miscarriage of justice ground, the Chief Justice invited additional grounds raising the question of law ground – an invitation taken up by the appellant.

Brawn v The King: materiality for the third limb

In Brawn, the appellant was convicted after trial on one count of maintaining an unlawful sexual relationship with a child under the age of 17. The complainant had said she had been abused by her “uncle”. The issue at trial was whether it had been proved it was the defendant who was the perpetrator, rather than another adult man in the appellant’s community.[14]

The prosecution disclosed after conviction that the appellant’s father had been charged with sexual offences against another child.[15] The appellant appealed his conviction on the basis that this breach of the prosecution’s duty of disclosure constituted a miscarriage of justice. The South Australian Court of Appeal found a breach of the duty of disclosure but dismissed the appeal because the defence had not shown it would or might have conducted the trial differently.[16] The High Court allowed the appeal and ordered a new trial.[17]

The materiality test under the third limb

The Court unanimously endorsed the existence of a materiality threshold and described that threshold with precision: where an error or irregularity in a criminal trial is established, a miscarriage of justice is made out if the error or irregularity “could realistically have affected the reasoning of the jury to its verdict.”[18]

The Court said:

[8] Read literally, the statement in Weiss v The Queen that a “‘miscarriage of justice’ … was any departure from trial according to law, regardless of the nature or importance of that departure” and similar statements in other decisions of this Court can be taken as saying that any error or irregularity in, or in relation to, a criminal trial need not have any possible effect on the trial and verdict before it constitutes a miscarriage of justice. However, as the parties’ submissions disclose, other statements in this Court have referred to a materiality threshold which must be overcome before it can be said that an error or irregularity that has occurred in, or in relation to, a criminal trial amounts to a miscarriage of justice, although the formulations of that threshold have differed. We confirm that there is such a threshold. At the invitation of the parties, we now harmonise those various formulations as follows.

[9] A common circumstance relied on as giving rise to a miscarriage of justice is that there was an error or irregularity in the trial at which the appellant was convicted; that is, some defect in the trial such as a departure from the rules of evidence or procedure, improper cross-examination by a crown prosecutor or a misstatement of fact by the trial judge in the summing up. If such an error or irregularity was “fundamental” in the sense discussed in the authorities then there will be a miscarriage of justice and no occasion to address the proviso separately will arise. The establishment of a fundamental error or irregularity will necessarily mean that there was a substantial miscarriage of justice.

[10] For other errors or irregularities to constitute a miscarriage of justice, they must be material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred. In this context, “could” is to be understood as meaning “having the capacity to”, and “realistically” distinguishes the relevant assessment of the possibility of a different outcome from a possibility that is fanciful or improbable. This threshold to establish that an error or irregularity is material must be satisfied by the appellant, but that burden is not onerous. It does not invite an analysis of whether, but for the error, the accused might or might not have been found guilty.

(footnotes removed, emphasis added)

As to the role of the proviso, the Court said:

[11] In each instance where the materiality threshold is met, the error or irregularity will be one that could realistically have affected the jury’s reasoning to a verdict of guilty. The inquiry required by this materiality threshold or test does not collapse into the inquiry undertaken in applying the proviso. The question posed by the materiality test looks to the possible effect of the error or irregularity on the trial that was had. In contrast, the task required of an appellate court in applying so much of the proviso that requires it to address the “negative proposition” stated in Weiss, namely by asking whether “the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the offence on which the jury returned its verdict of guilty”, is qualitatively different from asking whether an error or irregularity could realistically have affected the jury’s reasoning to the verdict of guilty that was returned by the jury in the trial that occurred. The proviso was addressed by all members of the Court in Hofer. As the judgments in Hofer illustrate, it is conceivable but not inevitable that an appellate court, having concluded that an error or irregularity was such that a miscarriage of justice has been established, could nevertheless be satisfied of the negative proposition, depending on the nature of the evidence and the nature of the error or irregularity.

Brawn thus canonises a four-step test for an appeal based on the third limb, miscarriage of justice in relation to an error or irregularity at trial:

1. The identification of an error or irregularity at the trial;
2. An assessment of whether the error or irregularity is fundamental – if so, there has been a miscarriage of justice and the proviso cannot apply;
3. If the error or irregularity is not fundamental, an assessment of whether it was “material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to a verdict of guilty that was returned by the jury in the criminal trial that occurred” – if so, a miscarriage of justice has been established;
4. A determination as to whether there has nonetheless not been a substantial miscarriage of justice so that the proviso applies and the appeal could be dismissed.

This formulation is not identical to any of those referred to by the High Court since Weiss. In particular, the focus is now on the reasoning process of the jury, rather than the verdict per se. This seems, with respect, sensible. An effect on the reasoning of the jury is an effect on the method to reach a verdict, and so the critical part of the trial. But it also avoids the fraught exercise of hypothesising how the jury actually reached their conclusion as to guilt so as to assess the impact of an error or irregularity on the verdict itself. There is also particular focus on “the jury in the criminal trial that occurred” as opposed to a reasonable jury or a jury in a hypothetical trial.  This has the virtue of anchoring the inquiry in the trial record itself.

The Court was careful to identify issues which were not covered by its judgment. First, the test for a miscarriage of justice where there is fresh or new evidence.[19] Second, where the alleged miscarriage does not involve an alleged error or irregularity.[20] Third, whether there will be a miscarriage where the error or irregularity was contributed to or the product of rational forensic decision of trial counsel.[21] That third issue was not raised in Brawn, but was raised in MDP.

The result in Brawn

The Court held that while the defence at trial did not seek to identify any particular alternative offender, it did focus on there being a single perpetrator, some other “uncle” other than the appellant. The Court held that the defendant’s case about an alternative perpetrator may have been enhanced if counsel was able to direct attention toward a particular “uncle” who had a reasonable level of contact with the complainant (ie the appellant’s father).[22]

Only with the disclosed material would counsel have had a sufficient basis to submit it was a reasonable possibility that it was the appellant’s father who was the “uncle” who committed the offences against the complainant.[23]

The Court said:

[41] It may be that, if the undisclosed material had been provided to the appellant’s legal representatives, the appellant’s defence would not have been conducted differently. There may have been forensic disadvantages to tethering the defence case too closely to nominating a specific “uncle” as the possible perpetrator. For example, as noted by the respondent, for a period of time when some of the sexual acts were said by the complainant to have occurred “nearly every day”, there was evidence that X was in Melbourne. The appellant may have also been hesitant to allow his trial counsel to conduct his case in a manner that potentially implicated X.

[42] However, as explained, the test for whether an error or irregularity is material so as to amount to a miscarriage of justice looks to the possible effect on the trial that was had; it is not a counterfactual inquiry into a trial that did not occur. If the appellant’s trial counsel had sought to identify X as the perpetrator, or the most likely perpetrator amongst the possible “uncles”, then that might have been a better or worse defence case than was in fact run. But that is beside the point. What matters is that the appellant was denied the opportunity to conduct a case that was different from the case that was run, and that difference could realistically have affected the reasoning of the jury to the verdict of guilty.

The appeal was allowed, conviction set aside and new trial ordered.

MDP v The King: extending materiality to the second limb and defining “decision”

Brawn was the watershed for the third limb, and then MDP for the second limb.

The appellant in MDP was charged with sexual offences against his step-daughter. The complainant’s sister gave evidence that she had seen the appellant slap the complainant on the bottom in a way that was not for discipline. At trial, the prosecution sought a propensity direction in relation to the bottom slapping evidence and contended to the jury that that evidence made it more likely the appellant had committed the offences. Defence counsel acquiesced to the direction sought, telling the judge that he intended to use it in his closing address. The judge gave the propensity direction, stating that although the evidence was “pretty tenuous” he was inclined to permit it to be used for the propensity purpose sought by the prosecution.[24]

The Court speaks with one voice on the core propositions

The Court delivered its reasons in four judgments – that of Gordon and Steward JJ, Edelman J and Gageler CJ agreeing on the outcome, with Gleeson, Jagot and Beech-Jones JJ in dissent. However, all seven justices agreed on three key points:

1. A second-limb “wrong decision on a question of law” exists where the trial judge makes a determination or response to a question of law that has legal effect in the trial.[25] A misdirection can be such a decision even if no party requested a ruling on the direction or objected to it.[26]
2. The second limb has the same materiality threshold explained in Brawn v The King: except where the wrong decision is fundamental, the appellant must show the wrong decision “could realistically have affected the reasoning of the judge or jury to the verdict of guilty” in the trial that occurred.[27]
3. The materiality inquiry remains distinct from the proviso, which, if reached, asks whether there was “no substantial miscarriage of justice” in the Weiss sense.[28]

A “decision on a question of law”

The joint judgment of Gleeson, Jagot and Beech-Jones JJ considered and rejected both the appellant’s argument that the admission of evidence without objection was a wrong decision on a question of law, and the Commonwealth Director’s argument that there could be no decision without a request for a ruling. The joint judgment identified that both approaches were contrary to previous decisions of the Court.[29]

The joint judgment held that it was preferable to “apply the statutory language in the context of the duties and functions of the trial judge and counsel in a criminal trial.” As to what constitutes a “decision on a question of law”, the joint judgment said:

[100] Such a decision is not confined to decisions of a trial judge that are made over the objection of a party. Instead, the natural and ordinary meaning of a decision on a question of law involves some determination or response to a question of law by a trial judge that has legal effect in the trial. Whether a trial judge has made a decision is to be considered in the context of the duties and obligations of a trial judge at a criminal trial.

[101] It is for the parties, consistent with their obligations to the court, to determine what evidence will be adduced at a trial. Ordinarily, the trial judge will only make a “decision” in relation to the admission or use of evidence if one party objects to that admission or use or at least seeks a ruling to that effect (although the admission of inadmissible evidence or the impermissible use of otherwise admissible evidence may give rise to a miscarriage of justice under the third limb). Whether there is a decision in a particular case will involve consideration of at least the significance of the evidence and whether there was a request for a ruling on, or objection to, the admission of the evidence.

[102] By contrast, the responsibility to deliver a summing up that correctly states the relevant principles of law rests with the trial judge, as does the responsibility to deliver reasons for judgment at a judge‑alone trial in those jurisdictions that permit such trials. Thus, if a trial judge misdirects the jury on a matter of law or includes a wrong decision on a question of law in their reasons for verdict following a trial without a jury there will be a wrong decision on a question of law for the purposes of the second limb (and that is so whether or not those decisions were the subject of submissions or counsel caused or contributed to the decision). Although a mere failure by a trial judge to give a particular direction will not ordinarily involve the making of a decision on a question of law unless a party has requested such a direction, two further points should be made. First, the failure to give a direction that was not requested may nevertheless amount to a miscarriage of justice. Second, the word “ordinarily” is important. Given the context of the duties and obligations of a trial judge in a criminal trial, there may be circumstances in which a trial judge’s failure to give a direction that has not been requested that has legal effect in a trial gives rise to a decision on a question of law.

Gageler CJ, Gordon and Steward JJ and Edelman J[30] all agreed with this analysis even though Gleeson, Jagot and Beech-Jones JJ were in dissent.

There are two important things arising from MDP.

First, the extension of the second limb to wrong directions agreed with, or even requested by, defence counsel at trial is significant for defence appeals in Queensland. Where previously such appeals had most often been decided under the rubric of the third limb, and subject to other cases which hold that there may not be a miscarriage where counsel agreed with the course adopted,[31] MDP makes clear that a wrong jury direction is a “wrong decision on a question of law” regardless of the conduct of counsel. That places the onus of ensuring jury directions are correct squarely on trial judges, and the agreement of counsel no longer immunises a verdict from appeal on that basis. As to conduct of counsel, Gleeson, Jagot and Beech-Jones JJ went on to say:

[109] If the evidence the subject of a particular decision on a question of law was admitted over objection or the direction the subject of a decision was sought but refused or given over opposition, then no question of the conduct of counsel who made the objection or sought the direction contributing to any wrong decision will arise. Further, while the decisions of counsel will often provide the context in which a trial judge may make a decision on a question of law, for example, to admit evidence or to give a direction, whether the conduct of counsel caused or contributed to the decision by the trial judge being wrong is irrelevant to whether there is a wrong decision on a question of law. The trial judge has a responsibility to “be astute to secure for the accused a fair trial according to law” and this extends to “an adequate direction … as to the law”.

[110] Otherwise, even allowing for any conduct of counsel which caused, contributed to or even encouraged a wrong decision by the trial judge on a question of law, if it is nevertheless concluded that there is a wrong decision on a question of law which could realistically have affected the reasoning of the judge or jury to the verdict of guilty then, subject to the application of the proviso, the appeal should be allowed and the verdict should be set aside.

Second, the joint judgment permits the prospect that a failure to give a direction may constitute a wrong decision on a question of law, depending on the circumstances. Edelman J took up this point at [57], stating “A mere failure by a trial judge to give a particular direction, by itself, will not ordinarily involve any determination or response to a question of law by the trial judge that has a legal effect in the trial. But such a failure might mean that a direction that was actually given by the trial judge, or facts that were summarised by the trial judge, involved an error of law in that the jury were permitted the liberty to engage in impermissible reasoning.”

That provides much wider scope for contending that a missed direction (as opposed to a misdirection) is an error of law, where the failure to give one direction might affect the correctness of another.

The contended wrong decisions in MDP

MDP contended there were two wrong decisions on a question of law: first, when the judge admitted the evidence of the complainant’s sister about the “bottom slapping”, and second when the judge decided to give the propensity direction to the jury.

The Court was unanimous in holding that the first decision was not a wrong decision on a question of law because there had been no objection to the evidence, and so no ruling from the judge. The Court rejected MDP’s argument that because the evidence was propensity-type evidence, the judge had a duty to exclude it unless it was shown to be admissible by the prosecution.[32]

The Court was also unanimous that the decision to give the direction was a decision on a question of law,[33] consistent with the principles above.

As to its wrongness, the Court unanimously held that it was wrong to give the propensity direction in relation to evidence that was not admissible as propensity evidence.[34]

Materiality applied in MDP

The Court did not agree on whether the error was “material” under the newly minted Brawn test.  This might be thought to be a poor omen if the goal is to enhance consistency in appellate decision making.

The majority, comprised of the judgments of Gageler CJ, Gordon and Steward JJ and Edelman J held that the wrong direction was material in the sense that it could realistically have affected the reasoning of the jury to verdict. Gordon and Steward JJ said:

[34] The Crown accepted, as it must, that the jury would not disregard the direction. It did not matter that the impugned propensity evidence bore no resemblance to the charged conduct. The impugned propensity evidence was capable of being interpreted as sexual in nature as that was the basis on which the Crown relied upon it in its closing, which was reflected in the trial judge’s direction to the jury. The prejudicial nature of propensity evidence is widely understood, hence the restrictive approach in Pfennig.

[35] 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. That direction could have led the jury down a wrong path if, consistent with what the trial judge had left open to them, the jury concluded that the bottom slapping did show sexual interest.

[36] Noting that the trial judge said the jury had to be persuaded beyond reasonable doubt that the bottom slapping did show sexual interest neither permits nor requires a different conclusion. The trial judge, by telling the jury to consider whether it did show sexual interest, necessarily told the jury that it could do so and thereby left sexual interest open as a pathway for them to decide. That the direction could have had that result is enough to show that it was material.

Gageler CJ said “For my part, I consider that the jury, attempting to discharge its sworn duty to find facts relevant to guilt applying the law as stated by the trial judge, could realistically have treated the evidence of witness “K” in the manner the trial judge directed was open – as evidence of MDP having a propensity to have a sexual interest in the complainant – in their reasoning to the verdicts of guilty that were returned in the trial of MDP that occurred.”[35]

Edelman J held that having featured in the addresses, evidence of the complainant’s sister and the defendant, and the subject of a direction it was “impossible rationally to contend that the bottom slapping evidence must have been ignored by the jury. There is, at the very least, a real possibility that the bottom slapping evidence was considered by the jury.”[36]

Gleeson, Jagot and Beech-Jones JJ dissented. Their Honours held that the materiality test requires a comparison between the trial that was had and one in which the correct decision of law was made.[37] They stated that the trial would remain one in which the evidence was led, the defendant gave evidence and was cross-examined on the topic and the evidence was the subject of addresses.[38] They noted the protective parts of the summing up including that they could not use the evidence unless satisfied it occurred and showed a sexual interest beyond reasonable doubt.[39] In those circumstances, the joint judgment said:

[142] In these circumstances, there was no realistic possibility of the jury relying on K’s evidence to support any finding of a sexual interest on the part of the appellant in the complainant and thus no such possibility of the jury’s reasoning process being affected. Further, unlike, for example, evidence of the commission by the appellant of unambiguously sexual acts towards the complainant, K’s evidence did not carry any appreciable risk of prejudice by the jury using the evidence in a manner contrary to the trial judge’s direction. The position may have been different had the propensity direction not included the protective elements to which we have referred (consistent with what might usually be given in the Uniform Evidence Act jurisdictions).

[143] Our assessment does not lose any force when compared with a direction precluding the jury from relying on K’s evidence to find any sexual interest on the part of the appellant in the complainant. On both approaches there was no realistic possibility that the jury could have treated K’s evidence as demonstrating beyond reasonable doubt a sexual interest in the complainant on the part of the appellant that he was prepared to act upon and no realistic possibility of the jury deploying it for some other impermissible use. It follows that the appellant has not demonstrated that the decision of the trial judge to give the propensity direction could realistically have affected the reasoning of the jury to a verdict of guilty.

The proviso

The majority held that the proviso could not prevent the appeal being allowed. Gordon and Steward JJ and Edelman J held that the proviso could not be applied because the appellate court could not resolve the credit issues which arose at the trial.[40] Gageler CJ agreed with Gordon and Steward JJ and said that he did not consider the Crown’s argument on appeal was sufficient to overcome the “negative proposition” from Weiss.  This highlights once again just how high the proviso threshold as put in Weiss remains for the prosecution.  Most of the work in criminal appeals will continue to be done within the three limbs and only very rare cases like Hofer seem to have any reasonable prospect of resuscitation under the proviso.

Miscarriage of justice in MDP

Having determined to allow the appeal on ground 4, relating to the wrong propensity direction given to the jury, the Court in MDP did not go on to determine whether the giving of that direction, or the admission of the evidence constituted a miscarriage of justice (grounds 1 and 3). The Court did not take the opportunity to answer the question explicitly not answered in Brawn as to how conduct of counsel which caused or contributed to an error or irregularity might influence whether that error or irregularity constitutes a miscarriage of justice. This issue remains live and will need to wait for another opportunity to be resolved by High Court.

The effect is being seen already

Given that criminal appeals are such a significant part of the workload of intermediate appellate courts, it should not be a surprise that Brawn and MDP have already been applied in Queensland, giving immediate practical content to the tests:

1. In R v Green [2025] QCA 148the complainant in a trial alleging sexual offences gave evidence by video link from the United Kingdom overnight from her perspective.  There were difficulties with the link but, more importantly, references to the overnight nature of the evidence created a level sympathy for her and impacted on the proper conduct of cross-examination.  The Court held (at [194] to [197]) that this irregularity “could have” (in a Brawn sense) realistically affected the reasoning of the jury given that she was the critical witness.  The Court also referred to whether the conduct of defence counsel acquiescing to the evidence continuing was to be considered (given that this issue was not resolved in either Brawn or MDP).  The issue did not need resolution because, by the time of the acquiescence the unfairness had already occurred.
2. In R v Sturgess [2025] QCA 150, the Court of Appeal was considering complaints related to the admission of evidence about an earlier incident of violence by the appellant against his wife of whom he had been convicted of murdering.  Having disavowed propensity reasoning, the Crown Prosecutor invited the jury to engage in it and, it was said, that no corrective direction had been given.  In anticipation of Brawn and MDP being decided (they had not been at the time of the appeal hearing) the grounds of appeal were framed by reference to both limbs.  Justice Ryan (with whom the other judges agreed) at [14] to [19] went through a helpful process of categorising the grounds in light of the MDP clarification of what amounts to a question of law. Counsel drafting grounds will find that analysis helpful.  Her Honour found that none of the alleged errors were made out, but concluded that if they had been they would not have met the materiality threshold because the learned trial Judge had otherwise directed the jury that the impugned propensity evidence was not relevant to the question of intent (which was the only live issue in the trial) and because to have given a corrective direction would have drawn attention to the evidence which her Honour considered was admissible for other reasons.

Conclusion

Brawn and MDP decisively re-set the approach to the second and third limbs of the common form appeal provisions. The cases have established a requirement under both limbs that the error / wrong decision either be fundamental, or meet a uniform, low-threshold materiality test — could the error / wrong decision realistically have affected the jury’s reasoning to a verdict of guilt in the trial that occurred? The court in MDP also unanimously determined the bounds of a decision on a question of law, including all directions given by a trial judge regardless of the attitude of trial counsel to them. The decisions re-shape the landscape in Queensland under the second limb and cement a comparatively low threshold of materiality under both the second and third limbs. This should – as a matter of strict logic – result in an easier path for appeals to succeed, particularly given the continued diminishing of the proviso as a curative tool.  Time will tell. 

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[1] Saul Holt KC and Susan Hedge appeared for the Appellant in “MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, instructed by Jasper Fogerty Lawyers.

[2] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 994 [109] (Gleeson, Jagot and Beech-Jones JJ).

[3] Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, 882 [43]; MDP v The King (2025) 99 ALJR 969;[2025] HCA 24, 975 [3] (Gageler CJ).  

[4] Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20.

[5] (2005) 224 CLR 300, 308 [18].

[6] Hofer v The Queen (2021) 274 CLR 351, 388 [115].

[7] Edwards v The Queen (2021) 273 CLR 585, 609 [74].

[8] Simic v The Queen (1980) 144 CLR 319, 328.

[9] Papakosmas v The Queen (1999) 196 CLR 297, 319 [72].

[10] Papakosmas v The Queen (1999) 196 CLR 297, 311 [44].

[11] Dhanhoa v The Queen (2003) 217 CLR 1, 12 [37], 13 [38], 15 [49].

[12] See for example Foster v The King [2023] NTCCA 5, [54] (The Court); Gahani v The Queen [2022] NTCCA 13, [78] (The Court); R v KBC [2023] QCA 60, [113]-[119] (McMurdo JA) [123] (Bond JA); R v WBS [2022] QCA 180, [114] (Davis J, with whom Kelly J agreed).

[13] See for example OKS v Western Australia (2018) 52 WAR 483, 530 – 532 [244] – [255] (Beech JA, with whom Buss P and Pritchard J agreed); Doyle v R; R v Doyle [2014] NSWCCA 4, [428] (Bathurst CJ, with whom Price and Campbell JJ agreed).

[14] Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, 874 [1].

[15] Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, 878-879 [25]-[26].

[16] Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, 879 [31].

[17] Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, 882 [48].

[18] Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, 876 [10].

[19] Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, 877 [13].

[20] Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, 877 [14].

[21] Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, 877 [15].

[22] Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, 880 [37].

[23] Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, 881 [39].

[24] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 978 [22]-[23] (Gordon and Steward JJ).

[25] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 980 [30]-[31] (Gordon and Steward JJ); 984 [56] (Edelman J); 992 [99]-[100] (Gleeson, Jagot and Beech-Jones JJ).

[26] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 975 [5] (Gageler CJ); 983 [47] (Edelman J); 992 [102] (Gleeson, Jagot and Beech-Jones JJ).

[27] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 975 [3] (Gageler CJ); 980-981 [33] (Gordon and Steward JJ); 983 [46] (Edelman J); 993 [106]-[107] (Gleeson, Jagot and Beech-Jones JJ).

[28] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 975-976 [7] (Gageler CJ); 981-982 [38]-[39] (Gordon and Steward JJ); 987-988 [70] (Edelman J); 993-994 [108] (Gleeson, Jagot and Beech-Jones JJ).

[29] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 991-992 [96] (Gleeson, Jagot and Beech-Jones JJ).

[30] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 975 [3] (Gageler CJ); 976 [9] (Gordon and Steward JJ); 982 [44] (Edelman J).

[31] For example see Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614, [8]-[9]; TKWJ v The Queen (2002) 212 CLR 214 at 130-131 [16] per Gleeson CJ, 133 [26]-[27] per Gaudron J, 155 [95] per McHugh J, 158 [107] per Hayne J.

[32] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 984 [57] (Edelman J); 996 [125] (Gleeson, Jagot and Beech-Jones JJ).

[33] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 980 [30] (Gordon and Steward JJ); 984 [58] (Edelman J); 996 [127]-[128] (Gleeson, Jagot and Beech-Jones JJ).

[34] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 980 [31] (Gordon and Steward JJ); 984 [55] (Edelman J); 998 [136] (Gleeson, Jagot and Beech-Jones JJ).

[35] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 975 [6] (Gageler CJ).

[36] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 987 [68] (Edelman J).

[37] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 998 [138] (Gleeson, Jagot and Beech-Jones JJ).

[38] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 998 [139] (Gleeson, Jagot and Beech- Jones JJ).

[39] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 998-999 [140] (Gleeson, Jagot and Beech-Jones JJ).

[40] MDP v The King (2025) 99 ALJR 969; [2025] HCA 24, 981-982 [39] (Gordon and Steward JJ); 988 [71] (Edelman J).