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[2025] QCA 184
respondent. Appeal dismissed. The Court held that the trial judge did not fail to meet the obligation to ensure a fair trial and that no miscarriage of justice was established on the asserted ground (paras...
The Court of Appeal dismissed the appellant’s challenge to his rape convictions. He argued that, because he represented himself, the trial judge should have told him to question two witnesses about alleged admissions or apologies. The Court accepted that judges must ensure self-represented accused receive a fair trial, but said the necessary assistance depends on the circumstances. Here, the appellant had shown that he understood how to test witnesses’ evidence, had put his denial of the offending to the complainant, and the judge had limited knowledge of the appellant’s position on the detailed evidence. The Court considered that prompting cross-examination about the alleged apology could improperly influence a forensic choice. It also noted that the grandmother did not support the alleged conversations, and that the rules applying to defence counsel’s presentation of a client’s case did not operate in the same way for an accused who could choose not to give evidence. The Court found no miscarriage of justice.
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The Queensland Court of Appeal dismissed MEP’s appeal against four jury convictions for rape, each charged as a domestic violence offence. The offences were alleged to have occurred at Ipswich on dates unknown between 24 January 2013 and 30 June 2015. The complainant was the granddaughter of MEP’s partner. The convictions followed a District Court trial on 20 November 2024 before Barlow KC DCJ [1].
MEP represented himself at trial. His position was that he did not commit the offences, that the prosecution evidence could not prove guilt beyond reasonable doubt, and that, if the conduct happened, someone else was responsible. He neither gave evidence nor called witnesses [3]. The appeal focused not on the jury’s general assessment of the complainant’s evidence, but on the trial judge’s handling of MEP’s self-representation.
The prosecution case included the complainant’s recorded accounts. She alleged that MEP digitally penetrated her on three occasions and raped her on another. She also described statements that MEP allegedly made after the rape, including an exclamation to the effect that he had just raped her and a question about what to do [10–13]. The complainant had been cross-examined by counsel before the trial, and the denial that MEP had touched or penetrated her was put to her [15].
The complainant’s grandmother’s son, referred to in the judgment as “the son”, gave evidence of a later conversation with MEP. The son said that, after hearing a conversation between MEP and the grandmother, he asked MEP whether he had done it to anyone else. According to the son, MEP said he had not done it to anyone else and continued apologising. When asked to clarify, the son described the apology as being for sexually touching the complainant, but could not recall the actual words beyond “I’m sorry” [18–19]. MEP cross-examined the son on other topics, including the location of the house and the layout, but did not ask about the alleged apology [20].
The grandmother gave no evidence about either the conversation described by the complainant or the later conversation involving the son [24]. On appeal, MEP relied on an affidavit explaining that he denied making the apology, was nervous and overwhelmed, and feared that asking the son about it might get him into trouble with the judge [30]. The Court granted leave for the affidavit to be used for this appeal purpose [2].
The appeal ground was that the trial judge should have directed MEP to put his case about the alleged admissions to the son and grandmother. The Court held there was no miscarriage of justice and dismissed the appeal [39–40].
The Court’s starting point was the judge’s responsibility to ensure a criminal trial is fair and conducted according to law. It drew on MacPherson v The Queen, where the High Court explained that a judge must give an unrepresented accused the information necessary for a fair trial [31]. The Court also referred to Brennan J’s qualification: the judge’s duty does not require, and is inconsistent with, advising an accused how to conduct the case, although information about rights may be necessary to allow the accused to decide how to proceed [32].
The Court treated that duty as contextual, not as a requirement that a judge identify every potentially useful question. It considered the position of this particular accused, the information available to the trial judge, and the risks of intervening. MEP had been given a document explaining the trial process and the basic function of cross-examination. It did not explain every way cross-examination could be used, but the Court found that MEP’s questioning of the son showed he understood that it could test a witness’s evidence [33–34]. His questions challenged the son’s recollection of the house and whether people in the lounge could see into other rooms [20, 34].
The trial judge did not, however, know what MEP intended to do about the alleged apology. Before the son testified, the judge knew that MEP denied the offending and that the complainant might have confused him with another adult male who sometimes stayed in the household. The judge also knew MEP wanted to rely on inconsistencies in the prosecution evidence. But the judge did not know whether MEP would give or call evidence, or what any such evidence would say [35]. This limited knowledge mattered to the Court’s assessment of whether the judge had to propose a specific topic for cross-examination.
The Court also identified a possible downside to intervention. If the judge had suggested asking about the apology, MEP might have understood the suggestion as encouragement to cross-examine on that point. There could have been forensic reasons not to do so, including the risk that questioning might make the son’s evidence more helpful to the prosecution [36]. The Court therefore treated restraint as part of the fair-trial assessment, rather than assuming that more judicial prompting would necessarily have made the trial fairer.
The evidence itself also shaped the result. The son could not recall the precise words used, despite the prosecutor’s attempt to clarify what had been said. In the summing-up, the judge noted that the son’s account did not include MEP saying, “I did it” [27, 36]. The grandmother did not corroborate either alleged conversation [24, 37]. And MEP’s denial that the offending occurred had been put directly to the complainant during her earlier cross-examination [15, 37]. In the Court’s view, MEP’s denial of the acts necessarily also denied the complainant’s account of a post-offence confession connected with those acts [37].
Finally, the Court rejected an argument that MEP should be treated like defence counsel who must put a client’s case to a prosecution witness. The appellant was not required to give evidence, and the legal constraints on defence counsel did not apply to him in the same way. The Court expressly said that no Browne v Dunn issue arose [38]. Considering these matters together, it held the judge had met the fair-trial obligation and no miscarriage of justice had been shown [39].
The judgment did not announce a new general test or alter the principle in MacPherson. It applied that authority to a particular claim about a judge’s obligation to suggest a line of cross-examination to a self-represented accused.
The pre-existing principle stated in the judgment is that the judge must provide a self-represented accused with the information necessary for a fair trial. There is no closed list of subjects on which the judge must advise an accused. What is necessary depends on the circumstances of the case and the accused. The judge may need to explain rights so the accused can choose how to conduct the defence, but must not take over the accused’s decisions about how to run it [31–32].
The decision’s application clarifies how those ideas can operate where the proposed assistance is not basic information about procedure, but a prompt to ask a witness about a specific piece of evidence. The Court considered the judge’s knowledge of the defence position, the accused’s demonstrated ability to cross-examine, whether the accused’s denial had already been put to a witness, and whether a suggestion could interfere with a forensic choice [34–37]. It did not hold that a judge can never suggest a topic, or that a self-represented accused must always be left to identify relevant questions alone. Its conclusion was tied to the circumstances described in the reasons.
The judgment also distinguishes the judge’s fair-trial role from the obligations that apply to defence counsel. The appellant’s counsel drew an analogy between the need for counsel to put a defendant’s case and the position of a self-represented accused. The Court said the analogy was not apt because an accused may elect not to give or call evidence, and because the constraints applying to counsel do not apply in the same way to an accused [38]. It then found no Browne v Dunn issue in this trial.
The judgment does not describe a change in the law after this decision, nor does it discuss later cases. Its treatment of legal doctrine is limited to applying MacPherson and addressing the Browne v Dunn analogy on the facts before it. Any account of subsequent legal development would require sources beyond this judgment.
At [31], the Court quotes Gibbs CJ and Wilson J in MacPherson: “the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial.” In plain English, self-representation does not remove the judge’s duty to ensure fairness. But the quotation does not mean a judge must coach the accused through every evidential choice.
At [32], Brennan J’s passage draws a boundary: the duty “does not require” advice on how to conduct the case, but may require advice about rights so the accused can decide how to conduct it. Put simply, a judge may have to explain the choices available, while leaving the accused to make those choices.
At [34], the Court acknowledges that the procedure document was not a complete guide to cross-examination. It had explained cross-examination as an opportunity to ask questions and gave an example involving a different version of events. It did not explain every use of cross-examination. The Court nevertheless found MEP’s actual questioning showed that he understood its function as a way to test a witness’s evidence.
At [35], the Court stresses the limits of the trial judge’s knowledge. The judge knew MEP denied the offending, but did not know whether he planned to give or call evidence, or what that evidence might be. The Court reasoned that a judge’s obligation to assist must be evaluated against what the judge could reasonably know at the time.
At [36], the Court identifies why an apparently helpful suggestion might be problematic. A direction to ask about the apology could be interpreted as the judge recommending that course, even though there could be forensic reasons not to ask. The Court also points to the weakness in the son’s evidence: he could not recall the words said, and the account did not include an express statement by MEP that he had committed the offence.
At [37], the Court notes that the grandmother did not support the alleged conversations and that the complainant had been challenged with the denial that the offending occurred. It treats that context as relevant to whether the omission to question the grandmother or son created unfairness.
At [38], the Court rejects treating the self-represented appellant as if he were defence counsel subject to the same obligation to put a client’s case. The appellant could choose not to give or call evidence. The Court’s express conclusion is that no Browne v Dunn issue arose.
At [39], the Court gives its conclusion: the judge did not fail to comply with the duty to ensure a fair trial, and there was no miscarriage of justice on the ground raised.
The decision is most directly relevant to an appeal alleging that a trial judge should have intervened because a self-represented accused did not question a prosecution witness about evidence said to amount to an admission. The factual features the Court considered include that the accused had received some explanation of trial procedure, had shown an ability to test evidence through cross-examination, had put a general denial to the complainant, and had not made clear to the judge that a specific account of the alleged admission would be disputed by evidence from the accused [33–37].
It may also be relevant where the judge has only limited knowledge of the defence position and is asked, in effect, to identify a particular cross-examination topic. The Court’s reasoning makes the judge’s knowledge at the time an important circumstance, rather than assessing the matter solely with hindsight [35].
The case also speaks to situations where the proposed question may have a forensic downside. Here, the son’s evidence about the apology was imprecise, and further questioning might have clarified or strengthened it for the prosecution. The Court did not decide that this risk will exist in every case. It treated it as a reason why a judicial prompt could be inappropriate in the circumstances [36].
The judgment is not a blanket rule that judges need not assist self-represented accused, nor does it decide what assistance would be required where an accused does not understand the right to cross-examine, has not been given basic procedural information, or has made clear that a witness’s account is disputed in a way the judge can identify. It also does not decide how the duty applies to different kinds of evidence or different procedural settings. Those questions would depend on the circumstances and on legal sources beyond the judgment.
This judgment supplies no information about how later courts have treated R v MEP. It was delivered on 3 October 2025, and the text provided contains no subsequent decisions, later citations, or account of the judgment’s reception. Accordingly, this section cannot identify whether a later court has followed, distinguished, applied, or questioned its reasoning.
The judgment itself identifies its relevant authority as MacPherson v The Queen and applies the principle about assistance to an unrepresented accused [31–35]. It also discusses Browne v Dunn to reject the proposed analogy with counsel’s obligations, stating that no issue under that authority arose at MEP’s trial [38]. These are the authorities discussed in the supplied judgment; they are not evidence of later treatment of R v MEP.
For research purposes, the safe distinction is between what this judgment decided and any later development. It decided that the particular failure to prompt MEP to question the son about the alleged apology did not cause a miscarriage of justice. Whether later courts have adopted that reasoning cannot be established from the text supplied.
The judgment leaves open how much procedural information a judge must give in a case where a self-represented accused has not demonstrated an ability to test witness evidence. Here, the Court relied on MEP’s cross-examination about the house and the witnesses’ opportunities to observe events as evidence that he understood cross-examination’s function [34]. The reasons do not set out a general threshold for what demonstration is enough.
It also leaves open how the fair-trial duty applies where an accused expressly tells the judge that a particular witness’s account of an admission is false, or explains that a fear or misunderstanding prevents them from questioning the witness. MEP’s affidavit gave an explanation after the trial, but the judgment does not say that the trial judge was aware of that explanation during the evidence [30, 35].
Another unresolved question concerns the line between neutral explanation and a suggestion that could influence forensic choices. The Court observed that a specific prompt could be taken as advice to pursue a topic and could risk improving the prosecution evidence [36]. It did not establish a comprehensive framework for deciding when a judge may clarify a self-represented accused’s options without appearing to endorse a particular course.
The reasons also do not determine what would follow if the evidence of an alleged admission were more precise, were corroborated by the other witness, or were central to the prosecution case in a way the Court did not find established here. The Court’s analysis included the son’s difficulty recalling the words and the grandmother’s lack of evidence about either conversation [36–37]. Different evidence could affect the fair-trial assessment, but the judgment does not decide how.
Finally, the Court found no Browne v Dunn issue on these facts [38]. It did not decide every circumstance in which that principle might intersect with self-representation, nor did it define a general rule about when an accused’s decision not to give evidence affects the cross-examination expected at trial.
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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 MEP [2025] QCA 184
PARTIES: R / v / MEP / (appellant)
FILE NO/S: CA No 266 of 2024 / DC No 408 of 2021
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Ipswich – Date of Conviction: 20 November 2024 (Barlow KC DCJ)
DELIVERED ON: 3 October 2025
DELIVERED AT: Brisbane
HEARING DATE: 23 September 2025
JUDGES: Mullins P and Bradley and Doyle JJA
ORDER: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was found guilty of four counts of rape (domestic violence offence) – where the complainant was the granddaughter of the appellant’s partner – where the appellant was self-represented at trial – where the appellant did not give evidence or call any witnesses at trial – where there was witness evidence of alleged confessions made by the appellant to the complainant’s grandmother and uncle – where the appellant did not cross-examine the witnesses on the alleged confessions – where the appellant’s case at trial was that he did not commit the offences – where the trial judge had limited knowledge of the appellant’s case at trial in respect of the detailed evidence given by witnesses called by the prosecution – where the appellant argued on appeal that the trial judge ought to have directed the appellant to put his case in respect of the alleged confessions to the relevant witnesses – whether there was a miscarriage of justice occasioned by the trial judge not directing the applicant to put his case in respect of the alleged confessions to the complainant’s grandmother and uncle / MacPherson v The Queen (1981) 147 CLR 512; [1981] HCA 46, cited
COUNSEL: S A Lynch for the appellant / M A Green for the respondent
SOLICITORS: Legal Aid Queensland for the appellant / Director of Public Prosecutions (Queensland) for the respondent
THE COURT: On 20 November 2024, the appellant was convicted after trial in the District Court before a jury of four counts of rape (domestic violence offence). The complainant was the granddaughter of the appellant’s partner (the grandmother). Each count was particularised as being committed on a date unknown between 24 January 2013 and 30 June 2015 at Ipswich.
The appellant appeals against his conviction on the ground there was a miscarriage of justice in the trial judge not directing the appellant to put his case in respect of the alleged confessions in cross-examining two witnesses: the grandmother and the son of the grandmother (the son). The appellant appeared for himself at the trial but is legally represented on this appeal. The only way in which he could pursue the ground of appeal was by relying on his affidavit sworn on 25 July 2025 that gave explanations for why he did not cross-examine the son and the grandmother on the statements attributed to the appellant that were capable of being characterised as admissions against interest. Leave was therefore given to the appellant to rely on that affidavit for the purpose of the appeal.
The appellant’s case at trial was that he did not commit the offences, that the evidence adduced by the prosecution was not sufficient to enable the jury to be satisfied beyond reasonable doubt that the appellant committed the offences, and that, if any offending had occurred, it was committed by someone else other than the appellant. The appellant did not give or call evidence at the trial.
Background
The appellant was in a relationship with the grandmother from 2006 which ended in 2020. Their daughter was born in 2008 (the appellant’s daughter). The grandmother had five other children who were older. The grandmother’s relationship with her previous partner (the previous partner) had ended six to 12 months prior to her meeting the appellant. The grandmother’s eldest daughter was the mother of the complainant who was born in June 2006. The complainant’s sister was a year younger than the complainant.
The appellant and the grandmother were living in a suburb of Ipswich in 2013 (the suburb) when the complainant and her sister went to live with the appellant and the grandmother. They were enrolled at the State school in the suburb. School attendance records for the complainant showed she was enrolled at that school for year 2 between 3 September and 13 December 2013. The appellant’s daughter also attended the same school during that period. Even though the appellant’s daughter was technically the aunt of the complainant, the complainant referred to the appellant’s daughter as her cousin.
When the complainant, her sister and the appellant’s daughter were living with the appellant and the grandmother in the latter part of 2013, the grandmother’s three sons (including the son) also resided in the same house.
It is relevant that immediately prior to the empanelment of the jury, the prosecutor announced for the benefit of the trial judge and the appellant that he was proposing to lead from the son:
“There’s another matter I wish to raise in respect of his evidence, and it appears at page 12 of the transcript or thereabouts… I’ll be leading or intend to lead from him evidence of a conversation that he, firstly, overheard between the defendant and his then-wife, and then some – in effect, a brief confrontation that he had with the defendant wherein the defendant apologised. And so I intend to lead that as a statement against interests, being the defendant’s response to that confrontation, in the context that that witness had overheard him speaking about the allegations … with his wife.”
The prosecutor’s opening concentrated on outlining the evidence of the complainant. In opening that evidence, the prosecutor referred to the complainant’s evidence in relation to count 4 about the conversation between the appellant and the grandmother after the appellant had placed the complainant back onto the mattress. The grandmother’s evidence was opened in very brief terms and did not refer to this conversation. It was only the evidence of the son about preliminary complaint that was referred to by the prosecutor in the opening. The conversation that the prosecutor had foreshadowed that he was proposing to lead from the son about the appellant’s apology was not opened by the prosecutor before the jury.
After the prosecutor had opened the prosecution case and the jury retired, the appellant raised with the trial judge that he did not know how to explain to the jury the differences in the statements. The trial judge clarified whether the appellant was trying to say that the jury might doubt some of the evidence because some of it was inconsistent with other parts of the evidence. That was what the appellant meant and the trial judge informed him that he could cross-examine the witnesses who were present to give evidence at the trial.
Summary of the relevant evidence adduced by the prosecution
The complainant’s s 93A interview recorded on 13 August 2020 was played for the jury as was the complainant’s s 21AK pre-recorded evidence which was recorded on 17 February 2023. The complainant’s s 93A statement described the offending as follows. When the complainant, her sister and her cousin were sleeping in the cousin’s room, it was hot, so they all decided to sleep in the grandmother’s room which had air conditioning. The complainant and her sister were sleeping on a mattress on the floor. The complainant woke up on her grandmother’s bed and the appellant was raping her in her sleep (count 4). She woke up in the middle of it and faked still being asleep. Her chest was on the bed, so she could not see what was happening, but when she woke up the appellant was behind her. When he finished what he was doing, he picked her up and placed her back on the mattress with her sister and she saw it was the appellant. When asked to explain what it was the appellant did to her, she said that he had his penis in her vagina from behind and he kept going in and out for about seven minutes after she woke up. She remembered the appellant telling her grandmother that “he did something to me” and her grandmother responded that “you’re just drunk, just go back to bed”. When asked further about what she remembered the appellant said, the complainant said he said “I just raped [the complainant], what do I do?” The complainant explained that when he put her back on the mattress, she rolled over, was peeking through, and saw the appellant walking fast back and forth at the end of the grandmother’s bed with his hands on his head. The complainant was seven years old when that happened and was in grade 2 going to the same school in the suburb as her cousin.
Before the rape happened, the appellant had come into her room on a couple of days and touched her around her legs and on her private part while he thought the complainant was sleeping. After a couple of nights, the complainant kicked him in the face and he walked out. The first time the appellant came into the room and touched her was when the complainant and her sister were sleeping on the mattress next to her cousin’s bed. Her sister was to the complainant’s left and the complainant was closest to the door facing the direction of the door. She was lying on the mattress face down but facing the door. She woke up and saw the appellant standing at the door. At first she thought it was one of her uncles but then realised it was the appellant. She went back to sleep but when she next woke up, the appellant had his fingers in her vagina (count 1). He pulled his fingers out and was just rubbing her legs. When his hand stopped touching her, she turned around and saw him walk out the door.
The next night the complainant was sleeping in the same position facing the door and she woke up to the appellant putting his fingers in her vagina (count 2). She could see in the corner of her eye that he was crouched down on his knees on her right side. For the next night, the complainant changed positions with her sister, so the complainant was sleeping closest to the wall. She woke up sleeping on her chest and the appellant had his fingers in her vagina again (count 3). She knew it was the appellant because she saw him walk out. The rape that occurred in the grandmother’s room happened about three or four nights after the appellant had come into the complainant’s room every night (for three nights).
Summing up
“The prosecution no doubt relies on this evidence of what the defendant said on those two occasions as supporting its case against him and in part as constituting admissions by him. Before you can rely on that evidence as an admission by the defendant of having committed any of these offences, you must be satisfied, first, that he did say the things that those witnesses said he said on either or both of the occasions; secondly, that by saying those things he was, in some way, confessing to the crimes or making an admission against his interest; and thirdly, that what he said was true. If you’re satisfied that the statements were made by him and that they indicated his guilt, then you have got to consider whether the statements on which the prosecution relies as indicating guilt were truthful and accurate statements. It’s up to you to decide whether they indicate that he is guilty of any of the offences, and if so, whether those things said by the defendant, if you find they were said by him, were true. Because if you’re not satisfied that he said them or that they were true, or you’re not satisfied of them being admissions, you can’t rely upon them as going to prove his guilt.
If you accept the evidence of what the defendant said on either of those occasions, you must also consider other things he said which you might view as indicating his innocence. If the witnesses told you about other things he said, for example, he didn’t answer [the son] as to why he did it. He didn’t say well, I did it. He said I didn’t do it to anyone else, according to [the son], if you accept that evidence. You are entitled to have regard to any statements that you accept the defendant made for the purposes of deciding whether they give rise to a reasonable doubt in your mind as to the defendant’s guilt.”
The appellant’s affidavit
The appellant set out in his affidavit his version of the conversation he had with the grandmother when the son was present. It was to the effect that the grandmother spoke to the appellant with the son there and said that the appellant had been accused by the complainant of touching her. The grandmother asked if the appellant had done anything. The appellant told her he had not and said words to the effect of “I’m sorry that she feels that way and she believes that, but I did not do that”.
The appellant noted in his affidavit that the grandmother did not give any evidence about the appellant’s apology in the conversation with her at which the son was present or the confession in the bedroom that was the subject of the complainant’s evidence. The appellant explained he did not ask the grandmother about what he had said during that conversation with her and the son because he did not think to do it, as he was nervous and overwhelmed. He stated in his affidavit that he disagreed with what the son had said and denied saying that. He did not ask the son any questions about that conversation because he did not know the legal process and was worried he would get into trouble from the judge if he asked the son about that apology.
What assistance was the appellant entitled to expect from the trial judge?
“There is no limited category of matters regarding which a judge must advise an unrepresented accused–the judge must give an unrepresented accused such information as is necessary to enable him to have a fair trial.”
“Whether any and what advice should be given to an accused depends upon the circumstances of the particular case and of the particular accused. What can be said is that if it is necessary to give any advice, the necessity arises from the judge’s duty to ensure that the trial is fair. That duty does not require, indeed it is inconsistent with, advising an accused how to conduct his case; but it may require advice to an accused as to his rights in order that he may determine how to conduct his case.”
“At the end of evidence-in-chief, that is after the prosecutor has finished asking a witness questions, the defendant has the right to ask question[s] of that witness. This is called ‘cross-examination’. It is not compulsory. Questions asked in cross-examination can be in a leading form, that is, the question can suggest the answer.
An important rule in cross-examination is that if the defendant intends to give evidence later, or to call witnesses to give evidence, of a version different to that given by a prosecution witness, the prosecution witness must be given a chance to agree or disagree with that other version. As an example: if a witness gives evidence saying that an event took place on a Friday night at 9.00pm, and the defendant intends to give evidence or call a witness to give evidence that the event actually happened on a Saturday at 2.00pm, in cross-examination the witness must be given the chance to agree or disagree that the event occurred on a Saturday at 2.00pm.”
The trial procedure document did not deal with all aspects of cross-examination. It gave the example of cross-examining on evidence that was contrary to evidence intended to be adduced by the defendant. It did not explain that cross-examination can be used to test the evidence of a witness, even if the defendant does not intend to give or call evidence. The information given by the trial judge to a self-represented defendant on trial procedure is not intended, however, to be a training manual that is exhaustive on how to conduct an effective cross-examination. It is apparent from the cross-examination that the appellant undertook in respect of the son’s evidence that the appellant understood that cross-examination was an opportunity to test the evidence of the witness. The appellant endeavoured to test the son’s evidence about what the complainant had disclosed as to the house in which the offending was said to have occurred and the opportunities for the appellant to enter the appellant’s daughter’s room without being seen by those family members in the lounge room.
The trial judge’s obligation in a trial where the defendant is self-represented explained in MacPherson must be considered in the context where the trial judge has limited knowledge of the defendant’s case in respect of the detailed evidence given by witnesses called for the prosecution. Before the son gave evidence, the only detail to which the trial judge was privy about the appellant’s case arose from the s 21AK cross-examination of the complainant that revealed the appellant denied the offending conduct and also contended that the complainant may have mistaken him for another adult male who sometimes slept over in the household. It was also apparent from the question which the appellant had asked of the trial judge after the prosecutor’s opening that he was intending to rely on the inconsistencies in the evidence of the witnesses. The trial judge had no knowledge at that stage of whether the appellant intended to give or call evidence, or its contents. The trial judge’s obligation to ensure the appellant had a fair trial therefore did not extend in these circumstances to his suggesting topics for cross-examination of the son.
In fact, caution was required of the trial judge. If the trial judge had suggested that the appellant may wish to consider cross-examining the son on the apology the son attributed to the appellant, the appellant may have taken that as a suggestion he should cross-examine on that topic when there were forensic reasons for why the appellant might not want to risk any cross-examination improving the son’s evidence for the prosecution case. As it was, the son’s evidence was unsatisfactory on that aspect in that he could not recall the words that the appellant said to him, despite the prosecutor’s attempt to clarify his evidence. That resulted in the trial judge in summing up to the jury in relation to that conversation that the appellant did not say to the son he “did it”.
Order
R
MEP [2025] QCA 184
(1981) 147 CLR 512
Appeal dismissed. The Court held that the trial judge did not fail to meet the obligation to ensure a fair trial and that no miscarriage of justice was established on the asserted ground (paras 39–40).
Her uncles were at the back of the house on the night that she was raped by the appellant in the grandmother’s bedroom. The appellant, the grandmother, the complainant’s sister, the appellant’s daughter and the three sons of the grandmother were all home on the nights that the appellant put his fingers in the complainant’s vagina.
The complainant was questioned about the preliminary complaints she made to her sister, her cousin, the son and her parents (namely her mother and stepfather).
The appellant was represented by counsel and solicitors for the purpose of the cross-examination of the complainant on 17 February 2023. The complainant stated that it was not common for the complainant and her sister and cousin to sleep in the grandmother’s bedroom. There was a conversation involving the complainant, her sister and her cousin when the complainant’s sister said that she had been molested by the previous partner. It was after that disclosure that the complainant told them that the appellant had done those things to her. The cross-examination concluded with counsel putting several propositions to the complainant with which she disagreed. These propositions were that the appellant had never penetrated her vagina with his fingers or his penis, he had never touched the complainant in her genital region or rubbed her leg, and he had never gone into her room after she had gone to sleep. It was also put to, and denied by, the complainant that it was the grandmother’s previous partner who had done the acts to her on a different occasion.
The s 93A statement of the complainant’s sister recorded on 20 August 2020 was also played for the jury. She gave preliminary complaint evidence. She was also able to state that sometimes she, the complainant and their cousin would all sleep in the grandmother’s room, because she and the complainant wanted to sleep with their cousin. When that happened, she and the complainant would be together on a mattress. Sometimes her cousin would sleep on the bed with the grandmother and the appellant. When she and the complainant slept in their cousin’s room, she and the complainant would sleep on the mattress.
The s 93A statement of the appellant’s daughter also recorded on 20 August 2020 was then played for the jury. It included the preliminary complaint made by the complainant who she described as her niece. She said, when the complainant told her about the appellant touching and raping the complainant, the complainant’s sister said that the previous partner had molested her.
The son was the first witness who was present at the trial to give evidence. The son’s evidence was of preliminary complaint made by the complainant around July or August 2020 and then of a conversation he had with the appellant a couple of days later after overhearing a conversation between the grandmother and the appellant. The son was 21 years old when he gave his evidence. The preliminary complaint evidence was to the effect that he was at home playing video games in his room and the complainant’s sister got him to come into the lounge room and the complainant told the son that she had been “sexually touched” by the appellant. The son could not remember the exact words used by the complainant. She was crying when she told him.
The son’s evidence of the conversation he had with the appellant was as follows. He accompanied the grandmother a couple of days later to get her belongings from the appellant’s house. He overheard a conversation between the two of them about the appellant’s conduct in relation to the complainant. The son asked the appellant “why and if he had done it to anyone else”. The appellant replied that he had not done it to anyone else and “[j]ust continued to apologise”. When the son was asked what he meant by “continued to apologise”, he said that “he apologised for sexually touching [the complainant]”. When the prosecutor tried to elicit whether these were the actual words that the appellant used in apologising, the son responded that “he just said … I’m sorry”. (The son also did not say whether his conversation with the appellant took place in the presence of the grandmother.)
After the son’s evidence in chief, there was an adjournment for 10 minutes to enable the appellant to prepare for his cross-examination. The appellant cross-examined the son on the preliminary complaint evidence. He got the son to say that the complainant did not tell him in which house the offending happened or he did not remember or recall if she did. The son accepted that he said in his statement to the police that it happened at the “two-storey house” but the son could not remember which suburb. The appellant then showed the son a photograph of a house in another Ipswich suburb (not the suburb) and the son thought that was the house. The son did not recall living in that house but did recall visiting and, when he visited, he would sleep downstairs. The son was then asked about the house in the suburb. He was shown a photograph of that house (which subsequently became exhibit 7) and the floorplan of that house (which subsequently became exhibit 8). The son then recalled the sleeping arrangements in that house. The son slept in the lounge room. When he visited, he would play Xbox with his brothers until they fell asleep. The son disagreed with the proposition that he could see the appellant’s daughter’s bedroom and the main bedroom from the lounge room. The appellant did not ask the son any questions at all about the son’s evidence that was arguably to the effect that the appellant apologised for his conduct in respect of the complainant that was the subject of the charges.
The grandmother gave evidence which included the following. Her eldest daughter and her partner were experiencing relationship problems and the complainant and her sister came to live in the suburb with the grandmother and the appellant for six to 12 months. There were four bedrooms in the house in the suburb. The appellant and the grandmother had their own room with an ensuite (the grandmother’s bedroom). The appellant’s daughter was in the bedroom next to the grandmother’s bedroom. There was the lounge and a combined dining/eating area. On the other side of the house there were two more bedrooms and another toilet and bathroom. The three sons were in one bedroom and the complainant and her sister had another room. When the eldest daughter and her partner came to visit the complainant and her sister, they would be in the same room as the complainant and her sister.
The grandmother could not remember whether her bedroom had an air conditioner. She could not remember whether the complainant and her sister ever slept in the appellant’s daughter’s bedroom. The appellant’s daughter sometimes slept in the grandmother’s bedroom. She would usually sleep on the floor. The grandmother did not recall the complainant or her sister ever sleeping in her bedroom in that house. The previous partner visited or stayed over at that house. Because the grandmother had grandchildren together with the previous partner, he was invited to celebrate the birthdays of their joint grandchildren and children. If the previous partner stayed the night, he would sleep in the same area as the children.
On weekends the grandmother and the appellant would drink alcohol. There would be family BBQs every second weekend at that house and on average each of the grandmother and the appellant would each a drink a six pack of XXXX Gold beers. Outside family events, they would drink alcohol at that house twice a week and would each drink three to six beers or up to 10 beers.
No evidence in chief was led from the grandmother about any confession by the appellant in her presence.
The grandmother’s evidence in cross-examination included the following. During her time with the appellant, the grandmother’s eldest daughter had accused the previous partner of molesting her. A former partner of the previous partner had also accused the previous partner of molesting her daughter.
Preliminary complaint evidence was also given by the complainant’s mother and stepfather.
By the grandmother not giving evidence of the conversation asserted in the complainant’s evidence that occurred immediately after the offending that constituted count 4, there was no support of that aspect of the complainant’s evidence. In any case, it was sufficient for the complainant to have been cross-examined that the offending by the appellant had not occurred. It followed that the appellant’s case was that the conversation of which the complainant had given evidence after the occurrence of the offending that constituted count 4 also did not occur. As the grandmother did not give any evidence of the other conversation which the son asserted took place when he accompanied her to the appellant’s house, her evidence did not support the apology referred to in the son’s evidence.
The appellant’s counsel made submissions on the appeal seeking to draw an analogy between the appellant’s position as a self-represented defendant and the obligation of defence counsel in a criminal trial to put the defendant’s case in cross-examination of relevant witnesses. The analogy is not apt. The trial procedure document had emphasised the presumption of innocence and there was no obligation for the appellant to give or call evidence. The constraints that apply to defence counsel in putting the defendant’s case do not apply in the same way to an appellant who may elect not to give or call evidence. No Browne v Dunn (1893) 6 R 67 issues arose in the appellant’s trial.
The appellant was entitled to expect the trial judge to ensure that the trial was fair within the constraints that applied due to the limited knowledge that the trial judge had of the defendant’s contentions in respect of the detailed evidence called by the prosecution. The trial judge did not fail in complying with the obligation to ensure the appellant had a fair trial. There was no miscarriage of justice as asserted in the ground of appeal.