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[2026] QCA 44
appellant. Appeal allowed. Conviction on count 2 quashed. Verdict of acquittal directed on count 2.
No linked legislation citations have been extracted yet.
The Queensland Court of Appeal set aside MEZ's conviction because the evidence, considered as a whole, did not justify the jury's conclusion beyond reasonable doubt. The court focused not on any single inconsistency but on their combined significance, including the complainant's similar complaint about another person, her acknowledged memory and trauma difficulties, and the fact that she said MEZ's wife witnessed the incident when the wife denied being present. Because the jury had been directed to accept the complainant's full account to convict, it could not simply disregard the disputed witness-presence detail. The court found a significant possibility that an innocent person had been convicted and ordered an acquittal. It separately held that the judge's response to the jury's question about the complainant's health was not a misdirection.
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2,562 words · generated 08/10/2026
R v MEZ [2026] QCA 44 was an appeal against a conviction for indecent treatment of a child under 16, under 12. The appellant was the complainant's uncle by marriage. The count that remained for the jury, count 2, alleged that between 4 May 2002 and 18 February 2003, when the complainant was six, MEZ licked her vaginal area in the lounge room of her home [1].
The complainant, aged 28 at trial, described an incident on a couch. She said MEZ had taken her to her parents' house, told her to remove her pants, and then licked her vaginal area while she was on the couch [8]-[9]. A central detail was that the appellant's wife, who was the complainant's aunt, entered through the laundry, saw what was happening and left [9]. The wife gave evidence that she had never seen MEZ alone with the complainant and had never witnessed inappropriate conduct [25]-[26].
The prosecution depended on the complainant's evidence being accepted as credible and reliable [5]. The defence pointed to inconsistencies in the complainant's accounts and to the wife's evidence contradicting her account of being present. The complainant accepted that she had poor memory, severe PTSD and difficulty separating events. She said her brain could put occurrences together, making it hard to identify what happened when [11]-[14]. She also gave evidence about another person, the partner, against whom she had made a complaint to police at the same time. The court identified a description in that complaint of conduct on a couch in terms almost identical to the count 2 allegation against MEZ [22], [39].
The jury convicted MEZ on count 2 on 1 May 2024. The trial judge had directed the jury to acquit on count 1 because the complainant's evidence placed that alleged offence outside the charged period and the prosecution amendment was refused [1]. On appeal, MEZ argued that the count 2 verdict was unreasonable and that the judge misdirected the jury when answering its question about ongoing support for the complainant's health [2], [41].
The Court of Appeal allowed the appeal. It quashed the conviction and directed that a verdict of acquittal be entered on count 2 [46]-[47]. All three judges agreed with that result [48]-[52].
The principal issue was not whether the Court of Appeal would itself have convicted MEZ. It was whether, after independently reviewing the whole evidence and making proper allowance for the jury's advantages, it was open to the jury to be satisfied of guilt beyond reasonable doubt [28]-[31]. The court stressed that a jury's advantage in seeing and hearing witnesses matters. It also explained that the assessment must account for the evidence as a whole and the issues arising at trial [29]-[30].
The Court did not treat the complainant's evidence as automatically unreliable because of inconsistencies. It acknowledged that most discrepancies concerned peripheral details and were matters for the jury to assess, particularly given the time between the alleged conduct and the first police statement [39]. Its conclusion arose from the cumulative impact of several matters rather than from a single discrepancy.
First, the complainant's complaint against the partner included an account of couch-related offending in almost identical terms to the count 2 account against MEZ [39]. Secondly, she said for the first time in her evidence in chief that MEZ had told her not to tell anyone and that the incident was “just a big game”. Her October 2021 complaint about the partner included a similar “game” statement, but the corresponding statement was not included in her contemporaneous complaint about MEZ. The court found no real explanation in the evidence for that difference [22], [39].
Thirdly, the complainant openly described memory difficulties and trauma, including difficulty pinpointing ages and dates and a tendency to combine occurrences in her memory [11]-[14], [39]. The court did not treat those matters as a reason to dismiss the complainant. Rather, it considered how they bore on the reliability of the particular account the jury had to accept.
Fourthly, the complainant's recollection of the appellant's wife witnessing the incident helped identify MEZ as the offender, because the wife was not said to visit the property without him [33], [39]. But the wife denied seeing the event, and her credibility was not seriously challenged [25]-[26], [40]. The trial judge had directed the jury that it had to accept the detail of the complainant's account, including the wife's alleged presence, and that the jury could convict only if it discounted the wife's contrary evidence beyond reasonable doubt [33], [36]-[37].
The respondent argued on appeal that the jury could reject the complainant's evidence about the wife witnessing the incident while accepting the rest of her account [37]. The Court rejected that as an available approach under the way the case had been left with the jury. The trial judge had treated the detail about the wife observing the incident as integral to the complainant's account, and the directions required acceptance of the complete account [33], [37].
Taking these matters together with the other inconsistencies, Mullins P concluded that the evidence did not support the jury's acceptance of the complete account beyond reasonable doubt. The Court found a significant possibility that an innocent person had been convicted [39]-[40]. Brown JA and Doyle JA agreed after their own consideration of the evidence [48], [51].
The second ground concerned the judge's response to the jury's question: “Can there be recommendations made as to ongoing support for the claimant, health-wise?” [41]. The judge said the jury had to assess the courtroom evidence, not decide the matter based on concerns for the complainant's health [42]. The Court held this was not a misdirection. The summing-up had just addressed credibility and reliability, including memory, trauma and inconsistencies, and those matters remained part of the evidence the jury had to assess [45]. The answer addressed concern for the complainant's welfare and did not remove relevant mental-health evidence from the jury's task.
The judgment presents the unreasonable-verdict ground as an application of existing appellate principles, not as a new test. At [28], Mullins P states that the Court's role was not in issue and refers to M v The Queen (1994) 181 CLR 487. The Court's task was an independent assessment of the sufficiency and quality of the whole evidence, asking whether the jury could properly be satisfied of guilt beyond reasonable doubt. That task has to be undertaken without disregarding the jury's responsibility or its advantage in seeing and hearing evidence [28].
The Court also referred to Pell v The Queen for the proposition that an appellate court assessing an unreasonable-verdict ground proceeds on the assumption that the jury assessed the complainant's evidence as credible and reliable [31]. That does not prevent appellate scrutiny of the whole record. The judgment sets out the balance: respect the jury's fact-finding role, but intervene if the evidence's deficiencies mean there is a significant possibility of wrongful conviction [28], [40].
The reference to R v ZT reinforces that a jury's advantages can extend beyond a witness's appearance and manner. They may include how evidence unfolds and the jury's collective experience in evaluating credibility and other factual matters [29]-[30]. The judgment therefore treats the jury's advantage as important, but variable according to the form of the evidence and the issues raised in each trial.
The judgment does not announce a general rule that similar complaints about different people establish unreliability, or that memory or trauma evidence necessarily undermines a complainant. Its reasoning is case-specific. The decision turns on the interaction of the similar couch accounts, the differing treatment of the “game” statement, acknowledged memory difficulties, the disputed evidence about the wife's presence, and the directions requiring acceptance of the complete account [33], [37], [39]-[40].
The judgment also discusses the prosecution's ability to call evidence that contradicts another prosecution witness. It cites R v DAX, R v FAZ and ZL v R for that point [27]. The wife’s contradictory evidence was therefore not treated as improper merely because she was called by the prosecution. The appeal succeeded because of the combined evidentiary assessment and the particular role her evidence played in the complainant's account, not because the prosecution was prohibited from calling her.
As to the second ground, the judgment records a contextual approach to jury directions. It reads the answer to the jury's welfare question with the immediately preceding summing-up on reliability, rather than treating the answer as an isolated statement [44]-[45]. The judgment does not suggest that mental-health evidence is irrelevant to credibility. It says the trial judge's answer, in context, did not prevent the jury from considering the complainant's trauma and memory evidence.
At [28], the judgment explains that the appellate court must assess “the sufficiency and quality of the whole of the evidence”. In plain English, the appeal court considers the full evidentiary picture, not just whether there was some evidence that could support the verdict. It still has to respect that the jury saw and heard the witnesses.
At [31], the Court says it must proceed on the assumption that the jury assessed the complainant as credible and reliable. That is not the end of the inquiry. The Court then examines whether the whole record could reasonably support a finding of guilt beyond reasonable doubt.
At [37], the Court explains why the respondent's proposed way of separating the evidence was not open under the directions given. The jury had been told it had to accept the detail of the complainant's complete account, including that the appellant's wife witnessed the incident. In effect, the jury could not treat that detail as irrelevant while still relying on the remainder of the account in the manner suggested on appeal.
At [39], the Court identifies four matters that became significant when considered together. This is important because the Court did not say every inconsistency was independently decisive. The reasoning concerns the cumulative effect of the issues on the reliability of the specific account supporting count 2.
At [40], Mullins P concludes that the evidence did not support the jury's acceptance of the complainant's complete account beyond reasonable doubt and that “there is a significant possibility that an innocent person has been convicted”. This is the decisive reasoning for allowing the appeal.
At [45], the Court says the answer to the jury's question “reinforced, and did not detract from” the directions about assessing witness evidence. In plain English, the jury was told not to make its decision out of concern for the complainant's welfare, but the complainant's evidence about memory and trauma remained evidence relevant to reliability.
The judgment is most relevant where an appeal challenges a jury verdict as unreasonable and the prosecution case depends substantially on a complainant's account. The decision shows that an appellate court may examine the combined weight of inconsistencies, memory evidence, corroborating or contradictory testimony, and the directions that framed the jury's task.
A particularly important feature here was that the complainant's account included a witness whose evidence directly contradicted it. The trial judge treated that detail as part of the account the jury had to accept before convicting [33], [36]-[37]. Where a disputed detail is made integral to the prosecution case or to the directions given to the jury, the appellate analysis may differ from a case where the detail can be separated without affecting the essential allegation.
The judgment also illustrates that similar accounts concerning different alleged offenders can become relevant to the reliability assessment when they arise in the evidence and are argued at trial. It does not establish that similarity alone resolves the question. In this case, it was considered with the complainant's evidence about memory, the different treatment of the alleged “game” statement, and the dispute about whether the appellant's wife witnessed the event [39].
Likewise, the complainant's acknowledged PTSD and memory difficulty were not treated as automatically disqualifying. They formed part of the particular evidentiary context and were considered alongside the timing and content of the accounts. The court noted that some discrepancies were to be expected because the alleged conduct occurred when the complainant was six and her first police statement was made about 17 years later [39].
The decision should not be read as a general credibility rule or as a substitute for a fact-specific assessment. Its reasoning depends on the complete trial record, including how the prosecution and defence cases were put and the actual directions given to the jury.
The supplied judgment does not refer to any decisions that post-date R v MEZ or provide any subsequent judicial treatment of it. It was delivered on 17 March 2026, and the material provided contains no later cases discussing, applying or distinguishing this decision. It would therefore be unsupported to state how later courts have treated it.
The authorities that R v MEZ itself cites are earlier authorities, not later treatment of MEZ. It cites M v The Queen on the appellate test for unreasonable verdicts [28], Pell v The Queen on the assumption that the jury assessed the witness as credible and reliable [31], and R v ZT on the scope of jury advantages [29]-[30]. It also cites R v DAX, R v FAZ and ZL v R concerning the prosecution's ability to call evidence that contradicts another prosecution witness [27].
The judgment's own treatment of those authorities is limited to the propositions it identifies. It should not be taken as establishing that every cited case was applied in all respects, or that any of them dealt with the precise combination of facts in MEZ. The judgment expressly uses the unreasonable-verdict authorities to assess the evidence and refers to the other cases on the specific point about contradictory prosecution evidence.
The judgment does not decide how the same evidence would have been assessed if the jury had been directed that it could accept the account of the couch incident while rejecting the detail that the appellant's wife witnessed it. The respondent advanced that possible approach, but the Court held that it was not available under the directions actually given [37]. The case therefore leaves the result in a differently directed trial setting unresolved.
Nor does the judgment prescribe a general method for weighing similarities between a complainant's accounts about different alleged offenders. It identifies the similar couch account as one of four significant matters in this record, but does not state that such similarity will always undermine, or support, reliability [39].
The Court's discussion of the mental-health direction is brief and expressly unnecessary to the disposition because ground 1 succeeded [41], [45]. It does not set out a comprehensive template for answering jury questions about a witness's welfare. Its holding is tied to the question asked, the wording of the response, the recent summing-up, and the absence of a request for further redirections [41]-[45].
Finally, the judgment itself cannot establish the case's subsequent precedential treatment. The provided text contains no later decisions. Any account of later adoption, limitation or distinction would require sources beyond the judgment supplied here.
This is general legal information, not legal advice. Zoe can make mistakes. Before acting on or relying on this analysis, have it checked by a qualified Australian lawyer.
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 MEZ [2026] QCA 44
PARTIES: R / v / MEZ / (appellant)
FILE NO/S: CA No 101 of 2024 / DC No 39 of 2023 / DC No 194 of 2024
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Warwick – Date of Conviction: 1 May 2024 (Lynch KC DCJ)
DELIVERED ON: 17 March 2026
DELIVERED AT: Brisbane
HEARING DATE: 6 March 2026
JUDGES: Mullins P, Brown JA, Doyle JA
ORDERS: Appeal allowed. Conviction on count 2 quashed. Direct that verdict of acquittal be entered on count 2.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO THE EVIDENCE – APPEAL ALLOWED – where the appellant was convicted after trial before a jury of indecent treatment of a child under 16, under 12 – where at the same time the complainant made a complaint against the appellant, she made a complainant against a different person about offending in almost identical terms as the complaint against the appellant – where the offending by the appellant was committed when the complainant was six years old – where the complainant conceded her memory was poor and she was affected by trauma – where the complainant recounted seeing the appellant’s wife witness the offending when the appellant’s wife gave evidence that she was not present – where there were numerous other discrepancies and inconsistencies in the complainant’s evidence with peripheral details of the offending – where the jury was directed that they could only convict the appellant if they discounted the appellant’s wife’s evidence that she was not present beyond a reasonable doubt – whether it was open to the jury to be satisfied beyond reasonable doubt of the appellant’s guilt / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION OR NON-DIRECTION – MISDIRECTION – where the appellant was convicted after trial before a jury of indecent treatment of a child under 16, under 12 – where the jury asked the question “Can there be recommendations made as to ongoing support for the [complainant], health-wise” – where the trial judge in response directed the jury to assess the complainant’s evidence based on the evidence given in the courtroom and not on any concerns for health or mental health – whether the trial judge’s direction removed the complainant’s mental health from the jury’s assessment of her evidence – where there was no misdirection by the trial judge / M v The Queen (1994) 181 CLR 487; [1994] HCA 63, cited / Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12, cited / R v DAX [2010] QCA 221, cited / R v FAZ [2021] QCA 16, cited / R v ZT (2025) 281 CLR 137; [2025] HCA 9, cited / ZL v R [2023] NSWCCA 279, cited
COUNSEL: J R Jones, with J B Reeves, for the appellant (pro bono) / M B Lehane for the respondent
SOLICITORS: Gilshenan & Luton Legal Practice for the appellant (pro bono) / Director of Public Prosecutions (Queensland) for the respondent
MULLINS P: The appellant was convicted on 1 May 2024 after trial in the District Court before a jury of indecent treatment of a child under 16, under 12 which was count 2 on the indictment. Count 1 on the indictment was for the same offence on a different occasion but the trial judge had directed the jury to return a verdict of not guilty in respect of count 1. The complainant’s evidence had placed that offence as occurring outside the period particularised for count 1 (which was between 1 May 2001 and 18 February 2003) and the trial judge refused to allow the prosecution to amend the indictment. Count 2 was particularised as occurring between 4 May 2002 and 18 February 2003 in the lounge room of the complainant’s home when the appellant licked the complainant’s vaginal area. The appellant is the uncle by marriage of the complainant.
The grounds of appeal are:
The verdict is unreasonable and cannot be supported having regard to the evidence.
The trial judge misdirected the jury by telling them that the complainant’s mental health was irrelevant and did not affect how they assessed the evidence and this misdirection gave rise to a miscarriage of justice.
At the time the offences occurred, the complainant was living on a farm property in a house with her parents and two elder brothers. Her grandmother (the grandmother) lived in the other house on the property together with her partner (the partner) and the complainant’s uncle (not the appellant).
The complainant gave evidence at the trial together with her mother and the aunt who is married to the appellant and is her mother’s sister. The appellant neither gave nor called evidence. The evidence was completed on the first day of the trial on 30 April 2024.
The prosecution case depended upon the acceptance of the complainant’s evidence as credible and reliable.
Complainant’s evidence at trial
The complainant was 28 years old at the trial. The complainant had drawn the layout of the house she lived in on the property (exhibit 1). She gave further evidence of the layout of the house by reference to photographs (exhibits 2-6). She described a three-seated brown plush couch that was up against the kitchen wall. All the seats were joined together and there were only armrests on the outside and not in the middle. Her evidence in chief included the following. Her aunt and the appellant had two sons. They lived in a different region of Queensland. They visited the farm property a few times. The complainant only recalled the ones that had significant meaning for her. They would stay at the grandmother’s house. When the complainant’s parents were at work, the grandmother was responsible for her. The complainant had free roam of the farm. When her aunt and the appellant visited the property, the complainant’s mother did not interact with them unless it was forced.
The first time the complainant recalled being alone with the appellant was when she was in her brother’s room. The appellant lay down on the complainant’s brother’s bed and told her to sit on his face. She was wearing her little purple dress and the appellant moved her underwear to the side and he started licking her vagina. She sat over his face, so her legs were on each side, and he had touched her to lower her down. She did not know how long he licked her vagina. It could have been minutes. She thought it was in the afternoon. The complainant could not recall whether the appellant said anything else to her apart from telling her to sit on his face. She could not recall saying anything to him. The complainant did not recall how old she was or what year it was. She believed it was the occasion when the appellant was at the farm for the wedding when the complainant was three or four years old and was a flower girl.
There was another occasion when the appellant and his family were visiting when they had a little white wagon car. The appellant told the complainant to come with him when he was going to her parents’ house. The complainant stated:
“And we had got there. He had went and sat on the couch, and I walked over, and he told me to take my pants off. And I – obviously being a kid, I didn’t understand what was going on, and he told me to take my pants off. So I’ve unbuttoned them, and he had pulled the rest down with my underwear and told me to stand on the couch so I could be closer to his face. And he sat me down and was rubbing me on him. He had clothes on. He was wearing, like, these cargo-style pants with these pockets, and then he stood me up and he was, like, smelling me, and he had then stuck his face in my vagina and started licking me there.”
The appellant was sitting upright in the middle of the couch, so his back was straight and his legs on the floor. The complainant’s feet were on either side of him towards his hip area. She was being held up by him. It was the afternoon and there was nobody else there. Her aunt had walked through the laundry door silently, the complainant noticed her, the appellant had not noticed her, the aunt was looking at them like she was horrified, and she turned around and stormed out. The appellant told the complainant that “we have to go”. They got up and went back and the complainant “was just in shock”. The complainant’s memory was that this incident occurred on the same day that the child N of the appellant and her aunt who would have been close to one year old was photographed being held by the grandmother on the complainant’s horse. The photograph of the grandmother with the child on the horse was exhibit 8. The complainant was shown another photograph which she identified of being of her father doing up her saddle on her horse and she was the little girl in the photograph (exhibit 9). That photograph was taken the same day as the photograph with N sitting on the horse. (It was common ground at the trial that the date of 17 February 2003 on the back of exhibit 9 was the date of processing of the film and did not prove when the photograph was taken other than it must have been taken on or before 17 February 2003.)
After that incident on the couch, the complainant recalled seeing the appellant and his family at the farm only once more. She was at her parents’ home with the appellant. One of her brothers was there but he would have been in his room. The appellant sat her on the office chair and lifted her dress and started touching her vagina briefly (the uncharged act). He told her to stand up and said “let’s go to grandma’s”. The appellant told her “don’t tell anyone about this and that it’s just a big game”.
The complainant’s evidence in cross-examination included the following. She was about four years old when her aunt and the appellant had their wedding in December 2000. When asked whether she remembered her mother being in the bridal party, she responded “Yes, I have photos” and explained that her memory was not great, so she relied on photos to remember who was there. She remembered getting ready as a flower girl with glitter in her hair and walking down the stairs. The complainant agreed with the proposition that she could not tell the prosecutor about the year of the incident that was the subject of count 1 until she found photos. The complainant explained:
“No, I – I have severe PTSD, so my brain will put all – all occurrences in one, so it was hard to pinpoint what was what. And until I can recall it perfectly in my – in my head, it doesn’t register.”
“No, I – I’ve pretty much muddled everything together. It is very traumatic to be going through this right now.”
“Because I was molested for 10 years of my childhood. It’s very difficult to pinpoint how old I was and what dates occurred when.”
The complainant was reminded that in her first statement to police she said that on the first occasion the appellant made her “sit on his face without pants on”. The complainant responded that she said that in her statement because she was wearing a dress and “you don’t wear pants under a dress” and that “[y]ou wear underwear, but not pants”. The complainant explained that she was not wearing any pants and in respect of her evidence in chief that the appellant pulled her underwear to the side, “[t]hat’s always been the same statement”. The complainant was reminded that she had told the prosecutor on 23 April 2024 that she was wearing a nightie on the first occasion but her evidence in chief was that she was wearing a purple dress. Her explanation was that the dress looked a lot like a nightie. Her parents were away working when the first incident occurred. She could not say how she ended up in her brother’s room alone with the appellant.
The second incident occurred after the child N had been born. The appellant had taken the complainant to her parents’ home in the little white station wagon. In relation to the photograph that was exhibit 9, her father was in his uniform and he helped saddle up her horse before he went to work. The complainant did not believe that the photograph that was exhibit 8 was taken on the same day as the child N’s christening event. It was put to the complainant that she had met the child N in May 2002 when she went on a trip to visit her aunt’s family with the grandmother and the partner. She did not remember that event and stated “I have very little memory of my childhood”.
The complainant was wearing jeans and a pink shirt in the photograph which was exhibit 9. They were her riding clothes. She was in a different shirt and shorts when the second incident occurred. She accepted that she told the prosecutor on 23 April 2024 that she was wearing the same pink shirt shown in exhibit 9 at the time of the second incident. She now said she was wearing a pink shirt but it was not the same pink shirt. She had “used the wrong wording” when she spoke to the prosecutor on 23 April 2024.
In relation to the couch on which the second incident occurred, the complainant was reminded that she had said in evidence in chief that the appellant was sitting upright on the couch, but she had told the prosecutor on 23 April 2024 that the appellant “was slumping backwards into the couch”. She explained that he slumped backwards to get underneath her. The complainant had said in her October 2021 statement that the incident occurred at the end of the couch closest to her bedroom. When it was pointed out that her evidence in chief was that the incident occurred in the middle of the couch and not the end of the couch, the complainant requested a break and made the comment that this was “really triggering and traumatising” for her.
After a short break, the complainant responded to the question about the inconsistency between her police statement and her evidence in chief as to where on the couch the incident occurred:
“Memory becomes more clear the more you have to think about it.”
“Yes. But the more I thought about it – because I was very traumatised, having to do that statement with two lots of counts there. There’s – the laun – laundry door was silent, until it slammed.”
The complainant accepted that the couch could not be seen from the entrance of the laundry door but it could be seen from the hallway.
In relation to the uncharged act that was referred to as the third occasion, the complainant accepted that she did not mention anything about the occasion in the office in her October 2021 statement. She could not recall giving a further additional statement in August 2023. She did accept that the first time she had raised the third occasion was in the conference with the prosecutor two weeks previously. She was cross-examined about the detail of the third occasion which she had given to the prosecutor two weeks previously but could not recall what she had said in that conference. The complainant stated:
“… the PTSD I’m going through today is making it very difficult for me to even use my brain as we’re currently speaking.”
Other evidence at the trial
The complainant’s mother’s evidence in chief included the following. The two houses on the farm property were about 800 metres apart and it was about a two or three minute walk between them. Her sister and the appellant would visit the farm two to four times per year and stay overnight at the grandmother’s house. Her relationship with her sister and the appellant was “[n]ot a very nice one”. The three-seater couch was against the wall in the lounge room facing the front door. The kitchen was on the other side of the wall that the couch was against.
The complainant’s mother’s evidence in cross-examination included the following. The two houses on the property were in sight of each other. Her sister’s wedding to the appellant was on the farm in December 2000. The complainant’s mother was one of the bridesmaids.
The appellant’s wife’s evidence in chief included the following. She confirmed the date in December 2000 when she and the appellant married. Their first child B was born in January 2001 and their second child N was born in May 2002. The two houses on the property were about 300 metres apart. Apart from their wedding, on one occasion when the aunt visited the property, the appellant was with her as they were preparing for one of their children’s naming day. On another occasion, the appellant accompanied her for his grandfather’s funeral. They were the only two occasions from 2001 onwards on which the aunt had visited the farm accompanied by the appellant. The aunt did not spend “every moment” with the appellant but one of their children was always with him. He would not always be within the aunt’s eyesight. They stayed overnight at the grandmother’s house for the christening. The aunt never saw the appellant alone with the complainant. The only interactions between them that she witnessed were conversations. (The prosecutor did not question the appellant’s wife about the specific occasion that was the subject of count 2, as she had given evidence that she never saw the appellant alone with the complainant.) At the time of the christening, they had a red Toyota little station wagon. For the funeral, they hired a car which was a red Magna.
The following evidence was adduced from the appellant’s wife in cross-examination. She and the appellant never had a white station wagon and they never borrowed or hired a white station wagon. She arrived a couple of days before the wedding and the appellant arrived at the farm the day before the wedding. About 30 people attended the wedding. Between August 2001 and when the child N was born in May 2002, the appellant did not go to the farm. The complainant met the child N about a week after he was born when she accompanied the grandmother and the partner on a visit. After the wedding the next time that he went to the farm property was for the naming day in November 2002. They stayed overnight for the naming day ceremony. The complainant’s mother was a godmother for the child N. The visit to the farm property for the purpose of the appellant’s grandfather’s funeral in February 2003 was brief and there was no overnight stay. The photograph of the child N on the horse being held by his grandmother was taken on the morning of his naming day. When she stayed on the farm, she spent more time in the grandmother’s house. She never saw the appellant go into her sister’s house. If she visited her sister’s house, she would generally enter the house through the sliding glass doors on the verandah which were generally left unlocked. She had no reason to walk past the sliding glass doors and enter the house through the laundry door. She never witnessed anything inappropriate between the appellant and the complainant.
Ground 1 – was the verdict unreasonable?
“In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.” (footnotes omitted)
“… the jury’s advantages are not confined to witness testimony but may extend to all of the evidence adduced at trial. The advantages spoken of are the advantages the jury had, including by the application of the jurors’ collective wisdom and experience of ordinary affairs, from seeing and hearing the evidence as it unfolds when evaluating factual matters, especially witness credibility. The existence, nature and scope of those advantages will vary from case to case depending on the form in which the evidence was adduced and the nature of the issues that arose at the trial.” (footnotes omitted)
“Whether the evidence is adduced in the form of witness testimony or recorded conversations or recorded interviews, the advantages may extend to an assessment of matters such as: the tone and manner in which the witness or participants spoke or conducted themselves; their maturity; their emotional state and intelligence; and how they interact with others, including family members, associates, strangers or officials (eg, police officers). The jury can consider those matters possessing a breadth of understanding of how different people speak and behave in such circumstances that a judge may not have.” (footnote omitted)
This Court in undertaking the assessment of whether the verdict of the jury was unreasonable must proceed upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable: Pell v The Queen (2020) 268 CLR 123 at [39].
The trial judge gave the usual directions about what is meant by the credibility of a witness and the reliability of the witness’ evidence and that many factors may be considered by the jury in deciding what evidence the jury accepts. The trial judge gave the usual example that a matter to be considered in assessing testimony is whether it differs from what has been said by the witness on another occasion or is contradicted by some other evidence. The trial judge directed the jury that “In weighing the effect of such an inconsistency or discrepancy, consider whether there is a satisfactory explanation for it”. The trial judge noted that the prosecution accepted that the jury had to be satisfied of the reliability of the evidence of the complainant as to the elements of the offence in order to convict. The trial judge drew the jury’s attention to the submission on behalf of the appellant that the complainant’s evidence shows her account is contradicted by other evidence and is inconsistent and that they should therefore consider any contradictory evidence in assessing her reliability.
The trial judge summarised the complainant’s account of the offending that constituted count 2 and included as part of that summary the complainant’s evidence about noticing her aunt entering through the laundry, standing with a horrified look on her face, and storming out. The trial judge noted that the jury “would have to accept the detail of that account in order to find this element of count 2 proved”. The transcript of the trial reveals that the trial judge expressed the view to counsel (in the absence of the jury) that for the jury to convict on count 2, they would have to disbelieve the appellant’s wife’s evidence about not walking in when that offence was being committed. That explains why the additional detail about the complainant’s seeing her aunt while the appellant was offending against her was included in the trial judge’s summary of the complainant’s account of the offending. It was treated as an integral part of the complainant’s evidence given of that occasion. Even though not expressed as the reason by the trial judge, a suggested explanation for this approach is that the relatively infrequent visits of the appellant with his wife to the farm property meant the complainant may have been relying on her memory of seeing the appellant’s wife enter through the laundry when the appellant was offending against her, as identifying for the complainant that it was the appellant who was the offender.
The prosecutor had addressed the jury in terms which were not particularly persuasive (due to the complainant’s oral evidence about her memory issues and trauma) that the additional details which the complainant had given in evidence about the circumstances of the second occasion including her shock that she saw her aunt who was looking in their direction at the time might make the jury think that the complainant “remembers these details because they’re something that really happened”. The prosecutor made the submission a second time in the address to the jury:
“You heard [the complainant] tell you that [the appellant’s wife] witnessed the offending in the lounge room. You might think that she would not say that her aunt witnessed the offending if she actually didn’t.”
The appellant’s trial counsel had addressed the jury in terms that the appellant’s wife’s evidence was very important as the complainant put her there on the second occasion witnessing the event and the appellant’s wife’s evidence was “that simply did not occur, and there really is no basis for which you wouldn’t accept her evidence”.
The trial judge then summarised the respective contentions of the parties in this regard. It was noted that the prosecution submitted that the complainant’s evidence should be accepted as credible and reliable in respect of count 2. It was noted that it was argued on behalf of the appellant that the jury would accept the account of the appellant’s wife that directly contradicted the complainant’s evidence about whether this event occurred. The trial judge then directed the jury that to find the appellant guilty of count 2, they would have to discount the appellant’s wife’s evidence regarding that event beyond reasonable doubt.
On the hearing of the appeal, the respondent submitted that was an unduly favourable direction to the appellant. Theoretically, it was a favourable direction to the appellant, as the evidence the complainant gave about seeing the appellant’s wife while the offending was being committed that was the subject of count 2 was strictly not part of the evidence that proved an element of the offence. The jury could have reasoned that they did not accept that part of the complainant’s evidence, but otherwise were satisfied beyond reasonable doubt of her evidence of the offending conduct committed by the appellant against her on the couch in the lounge room on that second occasion. That approach to the assessment of the evidence was not open in the way the trial was conducted, as the jury were directed that they had to accept the detail of the complainant’s account of the offending (that extended to her evidence about the aunt observing the offending). As the jury (as instructed) could only convict on count 2, if they accepted all the detail of the complainant’s account of the incident that constituted count 2 beyond reasonable doubt that meant, in effect, that they had to be satisfied to the same standard that the appellant’s wife’s evidence that she did not witness the incident should be rejected.
After the jury gave the directed verdict of acquittal on count 1, the complainant’s evidence of the first occasion of offending which had constituted count 1 was treated as an uncharged act together with the uncharged act in respect of the third occasion and were relied upon by the prosecutor at the trial to show the appellant’s sexual interest in the complainant. The trial judge directed the jury about the use which could be made of the uncharged acts in relation to the jury’s assessment of the complainant’s credit and reliability in respect of the evidence given in support of count 2 and as evidence of the appellant’s sexual interest in the complainant.
Most of the discrepancies and inconsistencies in the complainant’s evidence that were brought out in the complainant’s cross-examination related to peripheral details which were for the jury to assess with the benefit of the arguments of both counsel and the trial judge’s summing up. As count 2 had been particularised as occurring when the complainant was six years old and her first statement was not provided to police until about 17 years later, some discrepancies and inconsistencies in the complainant’s evidence were to be expected. There were four matters, however, raised by the evidence in this trial that are significant in considering (in conjunction with the other discrepancies and inconsistencies that were before the jury) whether the verdict was unreasonable:
the complaint made by the complainant to the police in respect of the partner at the same time as the complainant made the complaint about the appellant included the description of one incident of offending conduct (amongst many incidents) committed by the partner against the complainant on a couch in the grandmother’s house in almost identical terms to the complainant’s evidence of the offending by the appellant that constituted count 2;
for the first time in evidence in chief about the second occasion, the complainant stated the appellant told her “don’t tell anyone about this and that it’s just a big game” when the complainant’s complaint in October 2021 about the offending by the partner included a statement that the partner told her that this was a game between them and there was no real explanation for why the statement that the partner made to the complainant that “this was a game” between them was significant enough to be included in the police statement in October 2021 but a similar statement asserted to have been made by the appellant was not included in the statement in respect of the appellant’s offending that was given at the same time in October 2021;
the complainant frankly conceded that her memory was poor, she was suffering severe PTSD, she had been traumatised with making statements to the police, and that her brain would put “all occurrences in one, so it was hard to pinpoint what was what”; and
the inference that can be drawn from the complainant’s evidence that her memory of the conduct that constituted count 2 was committed against her by the appellant was assisted by her recollection of seeing the appellant’s wife (without whom the appellant did not visit the property) when the offending occurred.
Ground 2 – did the trial judge misdirect the jury about the complainant’s mental health?
“Can there be recommendations made as to ongoing support for the claimant, health-wise?”
“Now, I can understand why you, as jurors, might be concerned for the mental health of the complainant given what she said about her mental health when she was giving evidence yesterday, but that’s not a matter that’s relevant from your point of view and it’s obviously a matter for her to pursue or others to assist her if she is having – genuinely having problems with her mental health, but it’s not an issue that affects the way that you assess the evidence. You have to assess the evidence based on the evidence that was given here in the courtroom, not on any concerns for her health, mental health or otherwise. So hopefully that answers those queries.”
No further redirections were sought by either counsel at the trial in respect of the trial judge’s response to that jury question.
The gist of the complaint for ground 2 is that the trial judge’s redirection completely removed from the jury’s consideration the complainant’s mental health which was relevant to their assessment of her reliability and it omitted any instruction about what use the jury could make of the complainant’s evidence about her mental health that was relevant to the jury’s task.
The jury had retired at 1.00 pm to have lunch before commencing their deliberations. Their notes including the one with the question about the ongoing support for the complainant were immediately handed to the trial judge and the jury returned by 1.14 pm for the questions to be answered. The focus of the summing up which had been completed minutes prior to the receipt of the note was the reliability of the complainant as a witness. The answer to the note in its terms was directed at the concern of the jurors for the care of the complainant because of her mental health issues. The trial judge directed the jury appropriately that they had to assess the evidence of the complainant based on the evidence given in the courtroom and not on the basis of any concerns they may feel for her health or mental health. Some of the evidence they were directed to assess therefore was the complainant’s evidence of her trauma and her memory issues. This was relevant to her reliability as had been emphasised in the appellant’s counsel’s address to the jury and the jury had been instructed by the trial judge to take into account explanations for inconsistencies and discrepancies in the evidence of any witness. It was submitted on behalf of the appellant that the relevance of the complainant’s evidence about her mental health issues to the assessment of her credibility and reliability should have been specifically referred to by the trial judge when answering the question. In the circumstances, when the summing up had only just been completed, that was not necessary. There was no misdirection due to the trial judge’s answer for the jury question. The answer to the question reinforced, and did not detract from, the directions that had been given about assessment of a witness’ evidence. That conclusion is supported by the trial counsel not perceiving any need for further clarification of the trial judge’s answer to the question.
Orders
As the appellant has succeeded on ground 1, he is entitled to a verdict of acquittal.
The orders which should be made are:
Appeal allowed.
Conviction on count 2 quashed.
Direct that verdict of acquittal be entered on count 2.
BROWN JA: I agree with the analysis by Mullins P of the features of the evidence that support the appellant’s case and the Crown’s case on appeal, as advanced in the respective written and oral submissions having carried out an independent assessment of the evidence. Notwithstanding the advantages of a jury in a case such as this, I agree that there is a significant possibility that an innocent person has been convicted and that it was unreasonable for the jury to have decided that there was no reasonable doubt as to the proof of the appellant’s guilt. I also agree with her Honour’s conclusion in relation to ground 2.
It follows that I concur with her Honour’s proposed order that the appeal should be allowed and the consequential orders.
DOYLE JA: I have read in draft the reasons for judgment of the President.
Having considered the sufficiency and quality of the evidence adduced at trial, I agree with the President that there is a significant possibility that an innocent person has been convicted.
Accordingly, I agree with the orders proposed by her Honour.
R
MEZ [2026] QCA 44
(1994) 181 CLR 487
(2020) 268 CLR 123
(2025) 281 CLR 137
Appeal allowed. Conviction on count 2 quashed. Verdict of acquittal directed on count 2.
The prosecution therefore adduced evidence from the appellant’s wife that contradicted the complainant’s evidence that the appellant’s wife saw the offending that was the subject of count 2. As explained by Fraser JA (with whom Holmes and White JJA agreed) in R v DAX [2010] QCA 221 at [24], there is no prohibition upon the prosecution calling evidence from another witness whose evidence contradicts the complainant’s evidence. It was also noted in DAX at [24] that it was not improper for the prosecutor to urge the jury to prefer the evidence of one of the Crown witnesses to the evidence of the other Crown witness. See also R v FAZ [2021] QCA 16 at [13]-[19] and ZL v R [2023] NSWCCA 279 at [136]-[138].