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[2025] QCA 202
respondent. Appeal dismissed. The convictions remained in place. The sentencing appeal application had been abandoned.
1 cited instrument linked from this judgment.
The Court of Appeal dismissed O’Dea’s appeal against his convictions. The trial judge made an improper comment in front of the jury that could imply O’Dea was lying. But the judge clearly corrected the implication before O’Dea addressed the jury, and the relevant issues at trial meant that the comment could not realistically have affected the verdict. The Court also concluded that the directions on the recorded statements were sufficient: the jury was told to be satisfied that O’Dea was the speaker and that what he said was truthful before treating the statements as admissions. No miscarriage of justice was established.
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2,187 words · generated 07/10/2026
In R v O’Dea [2025] QCA 202, the Queensland Court of Appeal dismissed Patrick Finbar McGarry O’Dea’s appeal against six jury convictions. The convictions were for three counts of publishing an account of Family Court proceedings and three counts of using a carriage service to offend. The charges concerned material published on a website called “Free Missing Twins”, including material identifying people involved in Family Court proceedings and allegations that the father in those proceedings had sexually abused or raped the children and their mother. The judgment records the Crown’s particulars of the charges at [11]–[17] and its summary of the website material at [20]–[22].
O’Dea was not legally represented at trial. He did not give evidence or call witnesses. His appeal raised two issues: whether the judge should have discharged the jury after an exchange during cross-examination, and whether the directions about recorded statements treated as admissions were inadequate. The Court rejected both grounds.
The exchange arose because O’Dea sought to ask a witness about an order of the Family Court said to permit publication of identifying details. The trial judge had repeatedly ruled that the order was irrelevant to the publications at issue because those publications had not been authorised by the Court. After the jury returned, O’Dea again tried to raise the order. The judge said, “That is not true. You know it is not true” ([37]). The next day, O’Dea applied to discharge the jury. The judge acknowledged that the comment was “probably an imprudent thing to say” and later told the jury that she had misspoken and had not meant to suggest that O’Dea was dishonest ([39]–[40]).
The recorded statements arose from conversations between O’Dea and an undercover operative, whom O’Dea believed was a journalist, and telephone calls involving Holt. The Crown relied on statements said to show O’Dea’s involvement in establishing and contributing material to the website, and his knowledge about the nature of the material. A central question about the undercover recordings was whether O’Dea was the speaker. The judge directed the jury to be satisfied beyond reasonable doubt that he was the speaker before finding him guilty, and addressed whether the statements were truthful before they could be relied on as admissions ([33]–[34], [52]).
On the jury-discharge ground, the Court accepted that the judge’s words implied that O’Dea was deliberately dishonest. Boddice JA stated that “[t]o imply to a jury that the appellant was being deliberately dishonest is to disparage the appellant before the jury. That was an error” ([44]). The analysis did not end with identifying the error. The Court asked whether it was material: whether it “could realistically have affected the reasoning of the jury to its verdict” ([44]).
The Court considered the circumstances around the remark. The judge corrected the implication clearly and did so before O’Dea addressed the jury. The correction explained that the question had been stopped because the subject was irrelevant to the charges, not because the judge meant to call O’Dea dishonest ([39]–[41], [46]). The timing mattered because the jury received the correction before hearing O’Dea’s address.
The issues actually in dispute also mattered. The Court observed that the case did not turn on whether O’Dea had acted honestly. The Crown had expressly accepted that he believed the children had been sexually abused ([47]). As to whether O’Dea was the person speaking to the undercover operative, the Court said that issue was never seriously in dispute: O’Dea did not challenge the operative on identity, and his questioning proceeded on the basis that the conversations were between them ([48]). In those circumstances, the comment could not realistically have affected the jury’s reasoning to a guilty verdict ([49]).
The Court consequently held that discharging the jury was not necessary to ensure fairness, because the error did not have the capacity for practical injustice ([50]). The decision is not that a judicial comment implying dishonesty is harmless as a general rule. Its conclusion turns on the particular correction, its timing, and the issues that were genuinely contested.
On the admissions ground, the Court distinguished the kind of statements relied on from confessions to the offences themselves. The Crown relied on statements against interest about O’Dea’s involvement with the website and his knowledge of the material, not statements that directly confessed to committing the offences ([53]). The judge’s obligation was to direct the jury that it had to be satisfied of the statements’ truth before acting on them as evidence going to guilt ([54]).
The judge did so. The jury was told that it first had to be persuaded that O’Dea was the person who made a statement and, second, that what he said was truthful ([52], [55]). The Court rejected the argument that the jury also had to be directed that it must find the truth and accuracy of those statements beyond reasonable doubt ([55]). It also rejected the alternative argument that a distinct truth-and-accuracy direction was required for each statement. Reading the summing up as a whole, the judge had directed that what O’Dea said had to be true, and no separate direction for each statement was needed in this case ([56]–[58]).
The judgment does not purport to announce a new general rule. It applies existing principles to the particular trial record. For the jury-discharge issue, Boddice JA relied on Brawn v The King [2025] HCA 20 for the materiality inquiry, including the meaning of “could realistically have affected” the jury’s reasoning ([44] and footnotes 6–7). The judgment explains “could” as “having the capacity to” and “realistically” as a possibility of a different outcome that is not merely fanciful or improbable ([44], footnote 7).
The Court also treated fairness or necessity as the relevant consideration in deciding whether the jury should have been discharged, referring to Crofts v The Queen (1996) 186 CLR 427 at 440 ([50], footnote 10). It relied on R v Bosscher [2024] QCA 253 at [128] and [135] for the proposition that the error must have the capacity for practical injustice before the refusal to discharge the jury amounts to a miscarriage of justice ([50], footnote 11). The judgment applies those authorities to the trial judge’s comment and the correction that followed; it does not describe them as changed or displaced.
For admissions, the decision states the relevant obligation in the context of these facts: the jury had to be directed that it must be satisfied of the truth of statements advanced as admissions against interest before acting on them as proof of guilt ([53]–[55]). The Court held that the direction given met that requirement. It did not establish that the same wording will be sufficient in every trial or that juries never need statement-specific directions. Its conclusion was expressly based on the directions in this summing up as a whole and the issues in this case ([57]–[58]).
Accordingly, the “before and after” distinction is limited. Before this decision, the cited authorities supplied the applicable frameworks. After it, this judgment records their application to an unrepresented appellant’s trial, a corrected judicial comment, and directions about particular recorded statements. The judgment does not state that it alters the underlying tests.
At [44], Boddice JA said an error must be “material in the sense that it could realistically have affected the reasoning of the jury to its verdict.” In plain English, identifying a mistake is not enough. The appeal court asks whether, in the real circumstances of the trial, the mistake had a genuine capacity to affect how the jury reached its decision.
At [45], the Court identified factors relevant to that assessment: when the error happened, what issues were truly disputed, and that O’Dea was representing himself. This makes the inquiry contextual rather than mechanical. The status of the accused as self-represented was part of the circumstances the Court considered, not a standalone basis for allowing the appeal.
At [47], the Court noted that the Crown had accepted that O’Dea believed the twins had been sexually abused. That mattered because the judge’s comment appeared to concern truthfulness, while the central question was not whether O’Dea honestly held that belief. At [48], the Court added that identity as the speaker was not seriously disputed in the way O’Dea conducted his cross-examination. Together, those findings explain why the correction was considered adequate in this trial.
At [50], the Court concluded that discharging the jury was not necessary because the error did not have “the capacity for practical injustice.” Put simply, the judge’s words were wrong, but, given the correction and the issues in dispute, the Court found they did not create a realistic risk of an unfair verdict.
At [53]–[55], the Court explained the admissions issue. The statements were used as statements against interest about involvement, publication, and knowledge, rather than as confessions to the offences. The jury was directed to be satisfied that O’Dea made the statements and that what he said was truthful. The Court held that the judge did not also need to tell the jury to prove the truth and accuracy of every statement beyond reasonable doubt.
Finally, at [58], the Court assessed the summing up as a whole. Its conclusion was not that the precise words of one isolated direction always suffice. Rather, the relevant directions, considered together, told the jury that what O’Dea said had to be true before it could be treated as an admission relevant to guilt.
The decision is relevant to appeals where a trial judge makes a comment in front of a jury that may disparage an accused, and the accused argues that the jury should have been discharged. It highlights the importance of the correction, its clarity and timing, the issues genuinely contested, and whether the alleged prejudice could realistically have affected the verdict. The judgment’s conclusion depended on the specific circumstances: the judge corrected the implication before the accused addressed the jury, honesty was not a live issue, and identity as the speaker was not seriously contested ([45]–[50]).
It is also relevant where a prosecution relies on recorded statements as admissions against interest, rather than as confessions to the charged offences. The judgment focuses on whether the jury was told to establish that the accused made the statement and that it was truthful before using it as evidence going to guilt ([52]–[55]). The alternative ground shows that a complaint about the absence of a separate direction for each statement may be assessed by looking at the summing up as a whole ([56]–[58]).
The case should not be read as a general answer to all disputes about the admissibility of statements, the meaning of an admission, or the appropriate standard of proof in every context. The judgment addressed the adequacy of these directions on this appeal. It did not decide other evidentiary objections or provide a comprehensive treatment of all possible jury directions.
The judgment itself does not discuss any later court’s treatment of R v O’Dea. It was delivered on 24 October 2025, and the material provided contains no subsequent decisions. No conclusion about later treatment can therefore be drawn from this judgment.
The authorities it cites are earlier decisions, not later treatment of O’Dea. It applies Brawn v The King [2025] HCA 20 to materiality, Crofts v The Queen (1996) 186 CLR 427 to the fairness or necessity consideration in jury discharge, and R v Bosscher [2024] QCA 253 to practical injustice ([44], [50]). Those citations show the legal sources used by the Court of Appeal in reaching its decision, not how later courts have understood this judgment.
The judgment leaves open how a different judicial comment, a less clear correction, or a correction made after the accused’s address might affect the materiality analysis. The Court’s reasoning depends on the actual timing and content of the correction and on its assessment of the issues in dispute ([45]–[49]). It does not specify a universal point at which a correction will be insufficient.
The decision also does not resolve what directions may be necessary where the truth of particular statements is itself a central contested issue, where the statements are relied on differently, or where the prosecution’s case depends on a specific statement rather than the combined material. Its conclusion that no separate direction was needed for each statement was tied to the summing up as a whole in this case ([57]–[58]).
Nor does the judgment examine the substantive legal effect of the asserted Family Court publication order in detail. It records the trial judge’s repeated rulings that the order was irrelevant because the publications had not been authorised by the Court, but the appeal grounds addressed the jury-discharge decision and the admissions directions ([35]–[36]). The Court of Appeal’s reasons do not provide a broader ruling about publication authorisations in Family Court matters.
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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 O'Dea [2025] QCA 202
PARTIES: R / v / O'DEA, Patrick Finbar McGarry / (appellant)
FILE NO/S: CA No 203 of 2024 / DC No 1499 of 2021
DIVISION: Court of Appeal
PROCEEDING: Appeal against Conviction
ORIGINATING COURT: District Court at Brisbane – Date of Conviction: 30 August 2024 (Clare SC DCJ)
DELIVERED ON: 24 October 2025
DELIVERED AT: Brisbane
HEARING DATE: 20 May 2025
JUDGES: Bond and Boddice and Bradley JJA
ORDER: Appeal dismissed.
CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – INTERFERENCE WITH DISCRETION OR FINDING OF JUDGE – CONTROL OF PROCEEDINGS – DISCHARGE OF JURY – where the appellant was convicted by a jury of three counts of publishing an account of proceedings and three counts of use of a carriage service to offend – where the appellant was not legally represented at trial – where an issue sought to be agitated by the appellant at trial was an order of the Family Court of Australia permitting publication of the Family Court proceedings, as authorised by the Court – where the appellant sought to pursue the existence of that order during cross-examination – where the trial judge made repeated rulings that that order had no relevance to the appellant’s publications as they had not been authorised by the Court – where the appellant again sought to agitate the existence of that order during cross-examination despite the repeated rulings – where, in the absence of the jury, the trial judge reminded the appellant that she had ruled that the existence of the order was irrelevant and that the questioning during cross-examination was therefore impermissible – where, upon the return of the jury, the appellant persisted in raising the existence of the order – where an exchange between the trial judge and the appellant relating to the impermissible questioning occurred in the presence of the jury – where an application was made by the appellant to discharge the jury because of the trial judge’s comment made in the presence of the jury – where the application was refused – where the trial judge specifically addressed the jury in relation to the trial judge’s comment – whether the trial judge erred in not discharging the jury / CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was convicted by a jury of three counts of publishing an account of proceedings and three counts of use of a carriage service to offend – where the appellant was not legally represented at trial – where the trial judge gave directions to the jury about “admissions” in the appellant’s conversations with an undercover police operative and between the appellant and a Mr Holt – where the appellant submits that a miscarriage of justice occurred because the trial judge’s directions to the jury, about “admissions” in the appellant’s conversations with an undercover police operative and between the appellant and Mr Holt, were inadequate as the trial judge failed to direct the jury that it had to be satisfied as to the truth and accuracy of those statements, beyond reasonable doubt – whether the directions made by the trial judge were inadequate / Jury Act 1995 (Qld), s 60 / Brawn v The King (2025) 99 ALJR 872; [2025] HCA 20, applied / Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, applied / R v Bosscher [2024] QCA 253, applied
COUNSEL: M J Jackson for the appellant / G R Rice KC, with D A Marley, for the respondent
SOLICITORS: Bell Criminal Lawyers for the appellant / Director of Public Prosecutions (Commonwealth) for the respondent
BOND JA: I agree with the reasons for judgment of Boddice JA and with the order proposed by his Honour.
BODDICE JA: On 30 August 2024, a jury found the appellant guilty of three counts of publishing an account of proceedings and three counts of use of a carriage service to offend.
On 3 September 2024, the appellant was sentenced to 12 months’ imprisonment for each count of publishing an account of proceedings, 18 months’ imprisonment for the first count of use of a carriage service to offend, 2 years’ imprisonment for the second count of use of a carriage service to offend and 2 years and 6 months’ imprisonment for the third count of use of a carriage service to offend. It was ordered that all terms be served concurrently, except for the sentence of 2 years and 6 months’ imprisonment which was ordered to commence at the conclusion of the sentence of 12 months’ imprisonment imposed on the last count of publishing an account of proceedings. A non-parole period was set at 20 months.
The appellant appeals his convictions,1 relying on two grounds. First, that a miscarriage of justice occurred because the trial judge wrongly refused to discharge the jury under s 60 of the Jury Act 1995 (Qld). Second, that a miscarriage of justice occurred because the trial judge’s directions to the jury, about “admissions” in the appellant’s conversations with an undercover police operative and between the appellant and a Mr Holt, were inadequate as the trial judge failed to direct the jury:that it had to be satisfied as to the truth and accuracy of those statements, beyond reasonable doubt;alternatively, that before it could use each statement, the jury had to be satisfied of the truth and accuracy of each statement.
Procedural history
On 29 July 2021, an indictment was presented in the District Court of Queensland at Brisbane, charging the appellant and others with two counts of conspiracy to defeat justice (counts 1 and 2). The indictment also charged the appellant, alone, with three counts of publishing an account of proceedings (counts 3, 4 and 5) and three counts of use of a carriage service to offend (counts 6, 7 and 8). All the charges related to the same Family Court proceedings.
On 5 February 2024, a joint trial of all the charges commenced before a jury. At the commencement of that trial, the appellant unsuccessfully applied for severance of counts 3 to 8 on the indictment.
On 6 February 2024, a further application for severance of counts 3 to 8 on the indictment was allowed and the jury was discharged.
On 8 February 2024, the Crown indicated that it would not proceed further in respect of counts 1 and 2 on the indictment.
On 26 August 2024, a trial of counts 3 to 8 on the indictment commenced before a jury. The prosecution called three witnesses.
On 30 August 2024, the Crown closed its case. The appellant elected to neither give nor call evidence. The jury commenced its deliberations late that afternoon. The jury delivered guilty verdicts in respect of each count at 6.25 pm.
Trial
Particulars
The Crown particularised counts 3 to 8 as follows:In or about February 2017, the appellant and Timothy Holt (Holt) agreed to set up a website called “Free Missing Twins”, which Holt subsequently set up at the appellant’s request.The appellant and Holt agreed to administer the website together as an ongoing course of conduct, pursuant to an agreement between them to commit offences:contrary to s 121(1) of the Family Law Act 1975 by disseminating on that website, accounts of proceedings in the Family Court which identified the parties to the proceedings; andcontrary to s 474.17(1) of the Criminal Code (Cth) by publishing on that website, material that asserted that the male party to the Family Court proceedings was a paedophile, that he sexually abused or raped the twins and/or that he sexually abused or raped the female party to the Family Court proceedings.The appellant and Holt intended that offences contrary to those provisions would be committed under the agreement.The appellant provided Holt with documents relating to the Family Court proceedings and with instructions on their publication and commentary about them, with the intention that Holt would publish them on the website.
The Crown particularised count 3 as having been committed, in accordance with the agreement, between 28 March 2017 and 3 May 2017, when Holt engaged in a course of conduct to publish 23 “leaks” and one “press statement” on the website which contained accounts that identified parties to the Family Court proceedings, namely, the male and female parties and their children.
The Crown particularised count 4 as having been committed, in accordance with the agreement, between 21 May 2017 and 29 June 2017, when Holt engaged in a course of conduct to publish 22 “leaks” on the website which contained accounts that identified parties to, persons associated with a party to, or witnesses to the Family Court proceedings, namely, the parties, their children and relatives of the female party.
The Crown particularised count 5 as having been committed, in accordance with the agreement, between 17 August 2017 and 30 December 2017, when Holt engaged in a course of conduct to publish one “leak” and one “press statement” on the website, which contained accounts that identified parties to the Family Court proceedings, namely, the male and female parties and their children.
The Crown particularised count 6 as having been committed, in accordance with the agreement, between 28 March 2017 and 3 May 2017, when Holt engaged in a course of conduct to use a carriage service, namely, an internet service or mobile telecommunications service to publish 16 “leaks” and two “press statements” on the website, in circumstances where the use of that carriage service by Holt to publish those leaks and press statements on the website would be regarded by reasonable persons as being in all the circumstances, offensive because they referred to the male party to the Family Court proceedings as a “paedophile” and/or alleged that he and others sexually abused or raped the twins and/or alleged that he sexually abused or raped the female party to the Family Court proceedings.
Opening statement
In its opening statement, the Crown informed the jury that the background, to the establishment of the website and the uploading of material to it, was that the male and female parties to the Family Court proceedings were in dispute about custody and access of their twin daughters; that despite Family Court orders that the children reside with the male party, the female party had hidden the children; and that the website was supporting the female party’s contentions that the court orders were wrong and that the children ought not to be with the male party as he had sexually abused them.
The Crown told the jury that an undercover operative, who had had conversations with the appellant, posed as a journalist feigning an interest in the Family Court proceedings. The Crown case was that in the course of seven recorded conversations with the undercover operative, the appellant made very explicit, obvious and clear admissions to his participation in the establishment of the website, of his involvement with Holt in publishing on that website, and of the fact that he knew that the material he was writing and providing, was an account of Family Court proceedings and that he knew it was a breach of s 121 of the Family Law Act to publish that account.
Evidence
The lead investigator gave evidence that over a number of years, police monitored postings on the website, which was described as a blog-style website to which videos and other documents could be uploaded. Those postings contained information about the Family Court proceedings, identifying the parties and their twin daughters.
The investigator produced a running log of the posts to the website, listing the respective dates of each post. Copies of the actual posts revealed that there were references to the need for a reinvestigation into a court case involving twins, with the twins’ father being specifically named and referred to as a paedophile. The posts included specific references to the twins being raped and abused by their “paedophile father”, who was identified by name. There was also reference, by name, to the judge and to the terms of the order made by the judge. There was specific identification by name of the twins, as well as their maternal grandparents. The investigator gave evidence that the grandparents were witnesses in the Family Court proceedings. An issue in the Family Court proceedings was custody arrangements.
The investigator gave evidence that posts on the website contained a link to affidavits filed in the Family Court proceedings. Those affidavits specifically identified the parties to the proceeding in the heading of the document, as well as in the contents of the affidavit. The postings also included a video of an interview conducted by the Queensland Police Service with one of the twins, as well as what was said to be a diary of the twins’ mother, with a post referring to repeated disclosures of sexual abuse by their father. One post referred to the father of the twins as having “raped” his own wife and his own children. Another post gave the date of birth of the father and the date of his marriage to the twins’ mother. There was a reference to diary entries of the twins’ maternal grandfather, by name, with those entries identifying both the father and the twins by name. There was also reference to the Family Court of Australia awarding sole custody of the twins to the father.
The investigator gave evidence of telephone calls, intercepted by police, between a Timothy Holt and the appellant. Recordings of those telephone calls were played to the jury. Evidence was led as to the subscriber of the telephone numbers involved in each communication. One subscriber was Timothy Holt, the other was the appellant’s wife, with her address being an address in Grafton.
The investigator gave evidence that documents seized during the execution of a search warrant on Holt’s residence included an Australia Post pack with sender details of “P O'Dea”. The pack contained 11 discs. Those discs included interviews conducted between the twins and members of the Queensland Police Service.
In cross-examination, the investigator agreed that an issue in the Family Court proceedings was where the twins should live and that allegations had been made in those proceedings by the twins’ mother, of sexual assault by the twins’ father. The investigator agreed that when the appellant was arrested, he was living in Grafton. He also agreed that the twins and their maternal grandparents were not applicants, respondents, or intervenors in the Family Court proceedings.
Summing up
There was no admission at trial by the appellant that he was the person speaking to the undercover operative. Accordingly, a central issue for the jury to consider in respect of those recordings, was whether the jury was satisfied to the requisite standard, that the person speaking on the phone was the appellant.
The trial judge directed the jury that before it could be satisfied of the appellant’s guilt beyond reasonable doubt, the jury must first be satisfied beyond reasonable doubt, that the appellant was the person speaking to the undercover operative and that it was satisfied that the appellant was admitting to that undercover operative, that he was responsible for the publication of the material on the website and that he knew that it would be an account of the Family Court proceedings and that he published it nonetheless intending that that account of the proceedings be published on the website. The jury was directed that in respect of counts 6, 7 and 8, the jury had to be satisfied, beyond reasonable doubt, that the appellant intended for the postings on the website to be offensive.
Consideration
Ground 1
An issue sought to be agitated by the appellant at trial was an order of the Family Court of Australia permitting publication of the Family Court proceedings, as authorised by the Court. The appellant sought, in cross-examination, to pursue the existence of that order. On numerous occasions, the trial judge ruled that that order had no relevance to his publications as they had not been authorised by the Court.
Notwithstanding those repeated rulings, the appellant again sought to agitate its existence in cross-examination of the undercover operative. In the absence of the jury, the trial judge reminded the appellant that she had ruled that the existence of the order was irrelevant and that the questioning was therefore impermissible.
Upon the return of the jury, the appellant persisted in raising the existence of the order with the undercover operative. There then occurred the following exchange, in the presence of the jury:
“APPELLANT: Are you aware or unaware that the Family Court made an order allowing publication of identifying details of the parties and children?
PROSECUTOR: I object.
HER HONOUR: Well, that is - - -
PROSECUTOR: I object to that.
HER HONOUR: That is not true. You know it is not true.
DEFENDANT: Okay. I apologise. I don’t know. Okay. And I’m being genuine. I will move on by – sorry. Really sorry. Have we – we’ve discussed before media pictures.
PROSECUTOR: Your Honour, can I – we have a moment in the absence of the jury. I want to discuss this openly.”3
After the trial judge asked the jury to retire, the trial judge informed the appellant that there was no need to apologise and that the trial judge needed to ensure that the trial did not run off on tangents that were unnecessary, irrelevant and inadmissible. There was a further discussion about questions the appellant still wanted to ask and upon the return of the jury the appellant completed his cross-examination and the Crown closed its case.
When the appellant was called upon, he asked for time before responding. The trial judge adjourned the trial to the next day. On the following morning, the appellant made an application for discharge of the jury on the basis of the exchange between him and the trial judge. The trial judge described that exchange as “probably an imprudent thing to say”4 and expressed concern to ensure that she did not suggest to the jury that the appellant was a person who is untrustworthy. The trial judge indicated that the jury would be told that the trial judge had misspoken when stopping the appellant from asking the question and that the trial judge did not mean to imply that he was being untruthful. On that basis, the application for a mistrial was refused.
Upon the return of the jury, the trial judge addressed them as follows:
“… I need to correct something I said yesterday – yesterday [the appellant] was cross-examining one of the witnesses and commenced a question about court orders. And I stopped him at that point. I stopped him from continuing. That was because the matter had no relevance to the charges before you. But in – in stopping him, I misspoke and I just want to clear that up. I did not mean to suggest in any way that [the appellant] was being deliberately deceitful or dishonest. It was just – he was stopped because the direction he was going is irrelevant to these charges.”5
After that statement, the appellant was called upon and replied that he would not be introducing evidence or calling any witnesses. Thereafter the appellant addressed the jury and the trial judge summed up to the jury.
The appellant submits that a miscarriage of justice occurred because of the trial judge’s refusal to discharge the jury because no direction was sufficient to overcome the prejudice caused by the trial judge’s comment “you know it is not true”.
Whilst the Crown submits that the trial judge’s observation would not have been understood by the jury to be implying that the appellant was deliberately dishonest, there is no other way in which to understand the trial judge’s statement “you know it is not true”. That was the view of the trial judge, who specifically addressed the jury in an effort to overcome that implication.
To imply to a jury that the appellant was being deliberately dishonest is to disparage the appellant before the jury. That was an error. However, the establishment of such an error does not of itself give rise to a miscarriage of justice. To be a miscarriage of justice, such an error must be shown to be material in the sense that it could realistically have affected the reasoning of the jury to its verdict.6 In the context of the present error, ‘could’ means “having the capacity to” and “realistically” relates to the possibility of a different outcome that is not merely fanciful or improbable.7
In undertaking the inquiry required by materiality in the instant case, it is relevant to have regard not only to the error. Also relevant is the time at which it occurred, the issues which were truly in dispute for determination by the jury, and the fact that the appellant was not legally represented and was acting as his own advocate.
Although the appellant submits that the test of materiality is met because the disparagement went to his honesty and occurred just prior to the closing of the Crown case and before he addressed the jury, the disparagement was quickly addressed and repudiated in the clearest of terms by the trial judge. That repudiation occurred before the appellant addressed the jury.
Further, the issues in dispute for determination by the jury did not involve whether the appellant had acted honestly. To the contrary, the Crown made an express admission to the jury that the appellant at all times believed that the twins had been sexually abused.8
The only other potential issue, which concerned believing the appellant, namely, whether he was the person talking to the undercover operative, was never seriously in dispute. Not only did the appellant not challenge the undercover operative on this issue, his questioning of that operative was premised on the conversations being between him and the operative.
Ground 2(a)
The appellant submits that a miscarriage of justice occurred because the directions to the jury about what was said to be admissions by the appellant in conversations with the undercover operative and Holt, failed to direct the jury that it had to be satisfied as to the truth and accuracy of those statements, beyond reasonable doubt.
The relevant directions given by the trial judge were in the following terms:
“Now, the recordings. [The appellant] made it clear in his closing address that he was not admitting that that was him on the recordings. So that is an issue for you to decide. The prosecution relies on things said by the person they say is [the appellant] in those recordings. They say that the statements made by that person supports the prosecution case against him. In order to rely on any statement that [the appellant] made in the recordings as an admission that may tend to incriminate him or point to his guilt, you must first be persuaded that this man – the accused in our court – is the person who said it. That [the appellant] said it. And secondly, that what he said in that respect was truthful.”12
Whilst it is correct that the Crown advanced those statements as admissions, they were advanced as admissions as to the appellant’s involvement in, and the placement of material on, the website as well as knowledge that that material gave an account of Family Court proceedings which was in breach of s 121 of the Family Law Act. As such, the statements were being advanced as statements against interest going to prove the appellant’s guilt of the offences, not as confessions to the commission of the offences themselves.
One that is understood, the obligation on the trial judge was to direct the jury that it must be satisfied as to the truth and accuracy of each statement before acting upon those statements as going to prove the appellant’s guilt.
The trial judge’s direction expressly directed the jury that in order to rely on any of the statements in the recordings as an admission that may point to guilt, the jury had to be first satisfied that the appellant was the person who said it and secondly that what he said was truthful. There was no obligation on the trial judge, in the circumstances, to direct the jury that they had to be satisfied as to the truth and accuracy of each of those statements beyond reasonable doubt. There was no miscarriage of justice by reason of the failure to do so.
Ground 2(b)
The appellant submits that a miscarriage of justice occurred because the trial judge’s direction about the admissions in the appellant’s conversation with the undercover operative failed to direct the jury that before it could use each statement it had to be satisfied of the truth and accuracy of each statement.
In considering this ground, it is important to have regard to a later direction given to the jury in the following terms:
“If you are satisfied – if you accept that – if you accept that [the appellant] admitted to the undercover agent that he was responsible for that material – then what was published in relation to section 121 can also be taken into account when you are considering this issue of whether or not there has been some admission by [the appellant] that is relevant to this offence. It is a matter for you whether you think that the combination of the things that he said to the undercover agent by themselves or the combi – what he said to the undercover agent and what he had posted online, combine to amount to a – effectively, an admission by him that what was being published in this website was an account of proceedings in the Family Court. That he knew it would be an account of proceedings in the Family Court and he, nonetheless, still published. Intending that that account of proceedings in the Family Court be published.
What you make of the material, of the conversation, is a matter for you.
What you make of the material in the trial book is a matter for you.”13
Orders
Appeal dismissed.
An application for leave to appeal sentence was abandoned at the hearing. ↩
AB 869/10. ↩
AB 875/45–AB 876/15. ↩
AB 897/15. ↩
AB 903/11–AB 903/18. ↩
Brawn v The King [2025] HCA 20 at [3] (Brawn). ↩
Brawn at [10]. ↩
AB 838. ↩
AB 869/10; AB 869/35; AB 873/20. ↩
Crofts v The Queen (1996) 186 CLR 427 at 440. ↩
R v Bosscher [2024] QCA 253 at [128], [135]. ↩
AB 119/38–AB 119/46. ↩
AB 137/34–AB 137/48. ↩
AB 119/38–AB 119/46. ↩
R
O'Dea [2025] QCA 202
(2025) 99 ALJR 872
(1996) 186 CLR 427
Appeal dismissed. The convictions remained in place. The sentencing appeal application had been abandoned.
The Crown particularised count 7 as having been committed, in accordance with the agreement, between 21 May 2017 and 29 June 2017, when Holt engaged in a course of conduct to use a carriage service, namely, an internet service or mobile telecommunications service, to publish 22 “leaks” and one “press statement” on the website where the use of that carriage service by Holt to publish those leaks and press statements on the website would be regarded by reasonable persons as being in all the circumstances, offensive because they referred to the male party in the Family Court proceedings as a “paedophile” and/or alleged that he and others sexually abused or raped the twins and/or alleged that he sexually abused or raped the female party to the Family Court proceedings.
The Crown particularised count 8 as having been committed, in accordance with the agreement, between 17 August 2017 and 30 December 2017, when Holt engaged in a course of conduct to use a carriage service, namely, an internet service or telecommunications service to publish one “leak” and two “press statements” on the website, where the use of that carriage service by Holt to publish that leak and those press statements on the website would be regarded by reasonable persons as being in all the circumstances, offensive because they referred to the male party to the Family Court proceedings as a “paedophile” and/or alleged that he and others sexually abused or raped the twins and/or alleged that he sexually abused or raped the female party to the Family Court proceedings.
A Queensland Police officer gave evidence that in the course of her investigation of ‘the missing twins’, she became aware of the website. During 2017, she accessed the website from Townsville every couple of weeks to view its posts. She did not do so on a daily basis.
In cross-examination, the police officer said that the documents she saw in 2017 were similar to the documents sent to her by the Crown, prior to trial. She accepted she could not say that they were 100 per cent the same, but said they were very consistent with what she had read in 2017. She recalled that the documents contained a reference to the twins’ father being a paedophile and to one of the twins having drawn a picture of a little girl with a vagina and a man with an erect penis. She also recalled seeing videos of police interviews with the twins.
The undercover operative gave evidence that he was authorised to perform undercover duties in relation to an investigation into the website. As part of that investigation, he made contact with the appellant, who believed the undercover operative to be a journalist. Prior to doing so, he had received information from Holt to expect a call from the gatekeeper, known as Alan in regard to the missing twins. He recorded those telephone conversations.
The first telephone call recorded was around 10.00 am on 22 October 2017. The number was the same number used when the appellant contacted Holt. The undercover operative made a phone call to the person on 16 January 2018. He had a subsequent telephone call with that person on 27 January 2018. During that latter recording, the person said their real name was Patrick.
The undercover operative gave evidence that on 20 February 2018, he attended a tavern in Western Australia where he met a person who introduced himself as Patrick. The undercover operative described the person as aged in their early-to-mid 60s with a distinctive South African accent. The undercover operative also had another conversation with the person on 20 February 2018.
The recordings with the undercover operative contained statements to the effect that the person speaking had re-posted links to the relevant website, to various people in Queensland. The recordings included statements to the effect that that person had recruited Holt for his technical expertise, giving instructions to Holt about setting up the website and forwarding material to Holt for him to post on the website.
In cross-examination, the undercover operative accepted that he did not tell the appellant he was a police officer. He agreed that his investigation was primarily to locate the twins. He accepted that in his telephone conversations with the appellant, the appellant had stated, “over and over and over” that he wanted a reinvestigation into the allegations by the twins that their father had been sexually abusing them.2 He agreed that in contacting the appellant, his main objective was to find the twins and return them to their father.
When regard is had to those circumstances, it cannot be said that the error by the trial judge could realistically have affected the reasoning of the jury to a verdict of guilty.
That being so, there was no miscarriage of justice by reason of the trial judge’s refusal to discharge the jury. The exercise of the discretion to discharge a jury concerns fairness or necessity.10 Here, the discharge of the jury was not necessary to ensure fairness as the error did not have the capacity for practical injustice.11