//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2020] QCA 16
appellant. Appeal allowed; conviction quashed; retrial ordered.
No linked legislation citations have been extracted yet.
The appeal succeeded because the jury heard that the appellant had assaulted children during an earlier offence, even though the prosecution did not claim that he had assaulted the children involved in the current case. The respondent conceded that this detail should not have been given to the jury and that it could be misused. The Court accepted that this caused a miscarriage of justice, quashed the conviction and ordered a new trial. It did not decide whether the other prior convictions were admissible.
AI-generated legal information, not legal advice. Zoe can make mistakes. Check the cited source, and for advice about your situation consult a qualified Australian lawyer.
1,995 words · generated 02/10/2026
FAW appealed his conviction for unlawful assault causing bodily harm. The charge also alleged the circumstance that he was armed with an offensive instrument, but the jury did not find that circumstance proved. The trial was in the District Court at Brisbane, where FAW was convicted on 10 August 2018 and sentenced to 12 months’ imprisonment with immediate release on parole.
The complainant was FAW’s former partner. Although their domestic relationship had ended some years before the incident, they continued to keep company as friends. In 2017, FAW, the complainant and her children went fishing and camped overnight. The complainant’s account was that, after an argument the following morning, FAW grabbed her face, causing her to fall, and struck the right side of her head twice. The alleged incident took place in front of her children. FAW then drove the complainant and her children home; after he left, she called police.
Before trial, the prosecution applied to adduce evidence of four previous convictions for violence against a woman who was FAW’s partner at the time. The offences dated from 2003, 2007, 2008 and 2011. The judgment notes that alcohol was involved in most, but not all, of these incidents, and that children were present in most, but not all. A feature of the 2007 offence was that FAW had assaulted three children before hitting his then partner in the face with an open hand.
The trial judge admitted the prior-conviction evidence. The judge considered that there were “significant similarities” between the previous offending and the charged conduct, and said that the evidence had a “very strong degree of probative force”. The judge also concluded that there was no reasonable view of the similar fact evidence consistent with FAW’s innocence.
On appeal, FAW argued that none of the prior-conviction evidence was admissible. The respondent argued that the evidence was admissible, subject to a concession about the 2007 offence: the details that FAW had assaulted children should not have been disclosed to the jury. The respondent accepted that this detail had no probative value warranting admission in a case where the Crown did not allege that either of the complainant’s children had been assaulted. It also accepted that the potential for misuse caused a miscarriage of justice.
The Court of Appeal allowed the appeal, quashed the conviction and ordered a retrial. The judgment is ex tempore and the supplied text does not include numbered paragraphs. Accordingly, no paragraph references are assigned here.
The decision rests on a narrow ground. The Court did not need to decide whether all four prior convictions were admissible, or whether the trial judge’s broader similar-fact reasoning was correct. It was enough that one specific part of the evidence should not have been disclosed and that its potential misuse resulted in a miscarriage of justice.
The important distinction was between the past offence as a whole and the particularly prejudicial detail that children had been assaulted in that incident. The present prosecution concerned an alleged assault on the complainant. The Crown did not allege that FAW had assaulted her children. The respondent therefore accepted that the fact of the child assaults had no probative value capable of warranting admission in this trial.
The Court expressly treated the risk of misuse as consequential. It accepted that the jury’s knowledge of the child assaults could be misused, and that this resulted in a miscarriage of justice. The reasons do not elaborate a broader test for measuring prejudice against probative value. They do not decide that all evidence of prior violence against a partner is inadmissible, nor that the remaining convictions could not be admitted at a retrial.
The limits of the holding matter. The Court said that it was unnecessary to rule on the admissibility of the other prior convictions. It also said that the appeal’s success on the child-assault evidence should not be taken as expressing any view about the other evidence. The decision therefore establishes the result for this trial on the conceded error, not a complete admissibility ruling for every item of prior-conviction evidence.
The judgment also records that there was no argument for applying the proviso. It does not set out a separate analysis of that issue. Its disposition followed from the accepted miscarriage of justice: the appeal was allowed, the conviction quashed, and a retrial ordered.
The judgment does not purport to change or comprehensively restate the law governing similar fact evidence. It identifies Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7 as the authority for the prosecution to consider when assessing admissibility at a retrial. The Court asks that any such consideration be made “according to Pfennig” and with reference to the appellant’s outline of argument.
The supplied reasons do not summarise Pfennig’s legal test. For that reason, a detailed account of the test, or a claim about how R v FAW altered it, cannot be grounded in this judgment alone. The Court’s principal contribution in this case is instead its application of the admitted evidentiary error to the particular trial record.
Before the appeal, the trial judge had admitted the prior convictions after identifying similarities and finding strong probative force. The appeal did not set aside that reasoning across the board. Rather, the respondent conceded that the details of the 2007 assaults on children should not have been placed before this jury, and the Court accepted that their potential misuse caused a miscarriage of justice.
After the appeal, the admissibility of the remaining prior convictions was left open. The retrial order means the judgment did not resolve how the evidence should be dealt with in any new trial. The Court’s direction was that the prosecution give careful consideration to admissibility under Pfennig and the appellant’s argument. On this record, it would be inaccurate to describe R v FAW as holding that the four convictions were either collectively admissible or collectively inadmissible.
The decision is therefore best understood as a fact-specific appellate ruling about the child-assault details, coupled with an express reservation of other evidentiary questions. Any wider account of the law before or after the case would require legal sources beyond the supplied judgment.
The respondent conceded that the child-assault detail “ought not to have been disclosed to the jury in this case, where there was no suggestion in the Crown case that either of the children had been assaulted”. In plain English, the Crown’s case did not accuse FAW of harming the complainant’s children, so the details that he had harmed children in an earlier incident were not justified as evidence in this trial on the basis accepted by the respondent and the Court.
The Court stated that “the potential for a misuse of that evidence resulted in a miscarriage of justice”. This is the decisive point. The concern was not merely that the evidence was unpleasant or potentially prejudicial. The Court accepted that the jury might misuse it and that the risk had affected the fairness of the trial sufficiently to require the conviction to be set aside.
The Court also said that it was “unnecessary for this Court in this appeal to rule upon the admissibility of the other evidence of his prior convictions”. This means the appeal did not resolve whether evidence of the 2003, 2008 or 2011 convictions, or the remaining aspects of the 2007 conviction, could be admitted at a retrial.
Finally, the Court cautioned that allowing the appeal on the specific basis “should not be thought” to express a view about whether the other prior-conviction evidence had been properly admitted. In practical terms for understanding the precedent, the appeal outcome must not be read as an all-purpose ruling against the admission of prior convictions in this case.
The judgment is most directly relevant where evidence of a previous offence includes a highly damaging detail that does not correspond to an allegation in the current prosecution. Here, the jury heard that FAW had assaulted children during an earlier offence, while the Crown made no allegation that he had assaulted the complainant’s children in the current case. The respondent conceded the detail had no probative value warranting admission, and the Court accepted that its potential misuse resulted in a miscarriage of justice.
The case may also be relevant to an appeal where an evidentiary ruling allows the jury to hear prior offending that could invite reasoning beyond the purpose for which the evidence was admitted. But the judgment does not lay down a general rule for deciding all such disputes. It does not explain how the same analysis would apply if the current prosecution alleged violence against children, if the evidence had a different asserted connection to a live issue, or if the Crown contested the absence of probative value.
The contextual similarities identified at trial included prior violence against a partner and, in several incidents, the presence of children. The appeal decision does not decide whether those similarities justified admission of the other prior-conviction evidence. A precedent-based analysis should therefore keep two questions separate: the specific child-assault details that the Court treated as causing a miscarriage of justice, and the admissibility of the broader prior-offence evidence that the Court left unresolved.
The judgment’s application is tied to its procedural setting as well. The respondent conceded the error and there was no argument for application of the proviso. The Court’s reasons do not determine how a contested record, different evidentiary material, or a differently argued proviso question would be resolved.
The supplied judgment contains no information about later cases citing, following, distinguishing or otherwise treating R v FAW. It would therefore be unsupported to claim that later courts have adopted a particular interpretation of its reasoning or treated it as establishing a wider evidentiary rule.
Within this judgment, Pfennig v The Queen is cited as a source relevant to the admissibility assessment for a retrial. The Court did not set out the full reasoning of Pfennig or make a detailed application of it to each of the prior convictions. It directed the prosecution to consider admissibility in accordance with that authority and the appellant’s outline of argument.
For research purposes, the reliable account available from this text is limited: R v FAW allowed the appeal because of the potential misuse of the disclosed child-assault evidence, while expressly reserving the admissibility of other prior-conviction evidence. A history of subsequent treatment would need to be checked against later judgments, which are not included among the materials provided here.
The principal open question in the judgment is whether any of the remaining prior-conviction evidence would be admissible at a retrial. The Court did not express a view on that issue. It directed only that the prosecution give careful consideration to admissibility under Pfennig and the appellant’s outline of argument.
Other questions are left unanswered as well. The Court did not decide the appellant’s other grounds of appeal, which had been argued to obtain a retrial. The supplied text does not describe those grounds in detail, so their substance cannot safely be reconstructed. It also does not explain how the trial judge’s reasoning about similarities and probative force should be assessed for each conviction separately.
More generally, the judgment does not provide a detailed account of how to assess the probative value and potential misuse of prior-offence evidence in different factual settings. Its conclusion is tied to the specific evidence of assaults on children, the absence of an allegation that children had been assaulted in the current case, and the respondent’s concession. It should not be extended beyond those limits without further authority.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on this, relying on it, or using any draft, have a qualified Australian lawyer check it.
Source: Queensland Judgments (Supreme Court Library Queensland) (www.queenslandjudgments.com.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF QUEENSLAND
CITATION: R v FAW [2020] QCA 16
PARTIES: R v FAW (appellant)
FILE NO/S: CA No 107 of 2019 / DC No 59 of 2018
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Brisbane – Date of Conviction: 10 August 2018 (Burnett DCJ)
DELIVERED EX TEMPORE ON: 13 February 2020
DELIVERED AT: Brisbane
HEARING DATE: 13 February 2020
JUDGES: McMurdo and Mullins JJA and Boddice J
ORDERS: The appeal be allowed.The conviction be quashed.A retrial be ordered.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES AMOUNTING TO MISCARRIAGE – IMPROPER ADMISSION OR REJECTION OF EVIDENCE – where the appellant was convicted of unlawful assault, doing bodily harm – where the victim was the appellant’s ex-partner – where evidence was admitted of four prior convictions of the appellant for offences of violence against a woman who was then his partner – where, in one of the offences, the appellant had also assaulted three children before hitting his then partner in the face with an open hand – where the appellant argued that none of this evidence was admissible – where the respondent argued that all of this evidence was admissible, but conceded that the details of the conviction where the appellant had assaulted children should not have been disclosed to the jury – where the potential for a misuse of that evidence resulted in a miscarriage of justice / Pfennig v The Queen (1995) 182 CLR 461; [1995] HCA 7, cited
COUNSEL: J Crawford for the appellant / P J McCarthy QC for the respondent
SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent
McMURDO JA: The appellant was charged with an offence of unlawful assault, doing bodily harm and with the circumstance that he was armed with an offensive instrument. The jury convicted him on that charge, save for the circumstance of aggravation. He was sentenced to a term of 12 months’ imprisonment with immediate release on parole.
The appellant and the complainant had been in a domestic relationship some years before the event in question, which was in 2017. From time to time they continued to keep company under what the complainant described as a friendship.
The appellant, the complainant and her children went fishing at a place where they camped overnight. This was not far from her house, but his car was needed to take everything which was required for the trip. On that evening, after the children had gone to sleep in the tent, the appellant and the complainant argued and he left in his car. The next morning, after the complainant had cooked breakfast and had gone back to sleep, she awoke to see the appellant and her children apparently packing the car. She asked why he was doing that and an argument followed. On her evidence, he grabbed her by the face causing her to fall to the ground, after which there were two blows to the right side of her head, which felt like a fist. On her evidence, this occurred in front of her children.
The appellant then drove the complainant and her children home, where the complainant called the police after he had left.
Before the trial the prosecution applied to lead evidence of prior convictions of the appellant for offences of violence against a woman who was then his partner. There were four convictions, involving offences committed in 2003, 2007, 2008 and 2011. In most, but not all of them, the appellant was affected by alcohol. In most, but not all of them, children had been present. Significantly, in one of them, the 2007 offence, the appellant had also assaulted each of three children before hitting his then partner in the face with an open hand.
The trial judge ruled that the evidence of these convictions was admissible. He reasoned that there were “significant similarities … between the previous offending and the subject offending”, from which it followed, he said, that the evidence had a “very strong degree of probative force” and that it was “prima facie admissible”. His Honour then held that there was “no reasonable of the similar fact evidence [which was] consistent with the innocence of the defendant”.
For the appellant it is argued that none of this evidence was admissible, and that the appellant thereby lost the chance of an acquittal.
The respondent argues that all of this evidence was admissible, except in that case of the 2007 offence, from which the jury learnt that the appellant had assaulted children. For the respondent, it is conceded that that aspect of the 2007 offending ought not to have been disclosed to the jury in this case, where there was no suggestion in the Crown case that either of the children had been assaulted. The respondent properly concedes that at least this part of the evidence had no probative value which could warrant its admission, and that the potential for a misuse of that evidence resulted in a miscarriage of justice. There is no argument for the application of the proviso.
At least in that respect, it is our view that the appellant has established that his appeal should succeed. Consequently, it is unnecessary for this Court in this appeal to rule upon the admissibility of the other evidence of his prior convictions, and it should not be thought that in allowing the appeal on this particular basis, this Court is expressing any view upon whether the other evidence of prior convictions was properly admitted. For a retrial, the prosecution should give careful consideration to whether any of the evidence is admissible, according to Pfennig v The Queen (1995) 182 CLR 461, and to the appellant’s outline of argument on that question in this appeal. Similarly, it is unnecessary to express any view on the appellant’s other grounds of appeal, all of which were argued to the end of obtaining a retrial.
The order will be that the appeal is allowed. The conviction is quashed and a retrial is ordered.
MULLINS JA: I agree.
BODDICE J: I agree.
R
FAW [2020] QCA 16
(1995) 182 CLR 461
Appeal allowed; conviction quashed; retrial ordered.