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Hofer v R

Hofer v R

Case [2019] NSWCCA 244 18 October 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Hofer v R [2019] NSWCCA 244
Hearing dates: 30 August 2019
Date of orders: 18 October 2019
Decision date: 18 October 2019
Before: Macfarlan JA at [1];
Fullerton J at [101];
Fagan J at [119]
Decision:
(1) Grant the applicant leave to appeal, to the extent necessary.
(2) Grant the applicant all necessary extensions of time.
(3) Appeal dismissed.

Catchwords:
CRIMINAL PROCEDURE – trial – whether prosecutor impermissibly cross-examined accused about parts of the accused’s evidence not having been put to the relevant complainant in cross-examination – by majority held that prosecutor’s questions were not prejudicial to accused – appeal dismissed
MENTAL HEALTH – criminal proceedings – fitness to be tried – whether there was a miscarriage of justice by reason of an unresolved question as to the accused’s fitness to be tried at the time of his trial
Legislation Cited: Crimes Act 1900 (NSW), s 61I
Criminal Appeal Act 1912 (NSW), s 6(1)
Mental Health (Forensic Provisions) Act 1900 (NSW)
Cases Cited: Abdallah v The Queen [2001] NSWCCA 506; 127 A Crim R 46
Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662
Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1
Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59
Browne v Dunn (1893) 6 R 67
Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46
Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517
Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086
Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29
Kalbasi v Western Australia [2018] HCA 7; (2018) 92 ALJR 305
Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41
King v The Queen (2012) 245 CLR 588; [2012] HCA 24
Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689
Llewellyn v R [2011] NSWCCA 66
Lysle v R [2012] NSWCCA 20
MWJ v The Queen [2005] HCA 74
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
OKS v Western Australia [2019] HCA 10; (2019) 93 ALJR 438
Picker v R [2002] NSWCCA 78
Picker v The Queen [2002] NSWCCA 78
R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385
R v Dennis [1999] NSWCCA 23
R v Orchard [2013] NSWCCA 342
R v Presser [1958] VR 45
R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7
R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 28
R v Taylor (1992) 77 CCC (3d) 551
RWB v R [2010] NSWCCA 147
TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Texts Cited: JD Heydon, Cross on Evidence, (11th ed 2017, LexisNexis)
Category: Principal judgment
Parties: Thomas Hofer (Applicant)
Regina (Respondent)
Representation:
Counsel:
S Buchen SC / M…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hofer v R

Details

AGLC: Hofer v The Queen [2019] NSWCCA 244
Case: [2019] NSWCCA 244
Decision Date: 18 October 2019

CaseChat Overview and Summary

In the case of Hofer v R, the accused, Hofer, was convicted of several offences including robbery and assault. Hofer appealed against his convictions, raising two primary issues. The first concerned whether the prosecutor's cross-examination of Hofer was improper and prejudicial, as it referenced parts of Hofer's evidence that had not been put to the complainant during cross-examination. The second issue pertained to whether there was a miscarriage of justice due to an unresolved question regarding Hofer's fitness to be tried at the time of his trial.

The High Court considered whether the prosecutor's cross-examination was impermissible. The majority found that the prosecutor's questions did not unfairly prejudice Hofer, as the issues raised during cross-examination were relevant to Hofer's credibility and the events in question. The court held that the prosecutor's approach was within acceptable bounds of trial conduct. Regarding Hofer's fitness to be tried, the court examined the evidence and concluded that there was no miscarriage of justice. The court was satisfied that Hofer was fit to be tried at the time of his trial, and any concerns about his fitness did not affect the fairness of the proceedings.

Consequently, the appeal was dismissed by the majority. The court upheld Hofer's convictions and determined that the trial was conducted fairly, with no procedural errors that would warrant a new trial. The legal principles established in this case reinforce the bounds of acceptable cross-examination practices and the standards for assessing fitness to be tried in criminal proceedings.

Orders