Date of Hearing: 12 August 2021 Date of Judgment: 10 November 2021
S37/2021
ORDER
Appeal dismissed.
On appeal from the Supreme Court of New South Wales
Representation
T A Game SC with D P Barrow for the appellant (instructed by Blair Criminal Lawyers)
D T Kell SC with K M Jeffreys for the respondent (instructed by Solicitor for Public Prosecutions (NSW))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Hofer v The Queen
Criminal practice – Appeal – Miscarriage of justice – Application of proviso that no substantial miscarriage of justice actually occurred – Where appellant convicted of sexual offences against two complainants – Where appellant's evidence contradicted complainants' testimonies – Where rule in Browne v Dunn not observed by defence counsel – Where prosecutor cross-examined appellant about defence counsel's non-observance of rule – Where prosecutor's cross‑examination suggested parts of appellant's evidence a recent invention – Whether prosecutor's questioning impermissible and prejudicial such that it resulted in miscarriage of justice – Whether proviso applied because no substantial miscarriage of justice actually occurred.
Words and phrases – "any departure from a trial according to law to the prejudice of the accused", "appellate court's assessment of the appellant's guilt", "credibility", "cross-examination", "glaringly improbable", "miscarriage of justice", "nature and effect of the error", "proviso", "real chance", "recent invention", "root of the trial", "rule in Browne v Dunn", "serious breach of the presuppositions of the trial", "substantial miscarriage of justice".
KIEFEL CJ, KEANE AND GLEESON JJ. After a trial in the District Court of New South Wales, the appellant was convicted of eight counts of having sexual intercourse with another person knowing that the other person does not consent, contrary to s 61I of the Crimes Act 1900 (NSW).
The offences charged arose from two sets of allegations made by two young women. They concerned events which took place on consecutive days. The charges were heard together and the Crown case in each had certain common features, although the prosecution did not rely upon them as tendency or coincidence evidence. The two complainants (C1 and C2) each responded to an online advertisement placed by the appellant offering to rent a bedroom in a "one bedroom house", preferably to a female aged between 21 and 35. Arrangements were made for each complainant to meet with the appellant. By the time the appellant took each of them to view the room, C1 and C2 were intoxicated, having drunk alcohol to excess at the insistence of the appellant. There was no dispute that sexual intercourse of some kind took place. The issue at trial was whether the appellant believed that each complainant consented to having sex with him or whether he was reckless as to whether she was…
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.
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Details
AGLC
Hofer v The Queen [2021] HCA 36
Case
[2021] HCA 36
Decision Date
CaseChat Overview and Summary
The High Court of Australia heard an appeal from the Court of Criminal Appeal of New South Wales concerning a conviction for sexual offences. The appellant, Mr Hofer, was convicted of offences against two complainants, C1 and C2. The central dispute revolved around the appellant's evidence, which contradicted the complainants' testimonies, and the conduct of the prosecutor during cross-examination.
The primary legal issues before the High Court were whether the prosecutor's cross-examination of the appellant, which suggested parts of his evidence were a "recent invention" due to the defence counsel's failure to observe the rule in *Browne v Dunn*, constituted impermissible and prejudicial questioning. This led to the further question of whether such questioning resulted in a miscarriage of justice, and if so, whether the proviso, which allows an appeal to be dismissed if no substantial miscarriage of justice has actually occurred, should be applied.
The High Court reasoned that while there may have been a departure from the proper conduct of the trial, the prosecutor's questioning regarding the non-observance of the rule in *Browne v Dunn* was of little significance to the determination of the real issues. The Court found that the appellant's account was inherently problematic and appeared to be a fabrication, irrespective of whether it was a "recent invention". Consequently, the Court concluded that the jury had not been prevented from performing its function and that the flaw in the trial process did not occasion a substantial miscarriage of justice.
The High Court dismissed the appeal, upholding the decision of the Court of Criminal Appeal. The Court found that the proviso applied, meaning that despite any potential error, no substantial miscarriage of justice had actually occurred.
Orders
Orders of the court
Appeal dismissed.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Later that evening, C2 received a text message from the appellant: "Hi goodnight dear. Call me if you have any problems getting home". A short time later she received another saying, "Text me let me know you're okay".The appellant's evidence in chiefRegarding C1 The appellant gave evidence that C1 was merely tipsy when they entered the bedroom and was able to maintain a normal conversation. She accepted his invitation for a massage and participated voluntarily in acts of oral sex which followed. He denied that penile‑vaginal intercourse took place. He said that at no point did she say the words "stop" or "no" and that she gave no indication that she did not want the acts to occur. He gave evidence that C1 had an orgasm, a fact which had not been put by defence counsel to C1. The appellant said that, in conversation following the sexual acts, he told C1 he had had chlamydia, and this made her angry and resulted in her dressing and leaving. He was cross‑examined as to the relevance of this to C1, given his claim that they had not engaged in penile‑vaginal intercourse.Regarding C2 The appellant gave evidence that he and C2 discussed aspects of their personal lives over dinner. He made no response to her evidence that she had told him that she was a lesbian but he claimed that C2 had flirted with a young man at the bar they later attended. The appellant said that when they arrived at his house, C2 was "slightly intoxicated" and in a happy mood. She was walking normally. He poured a drink, asked her to play music on her mobile phone, they undressed and she accepted a massage from him and participated in the acts of oral sex which followed. She initiated penile‑vaginal intercourse which was interrupted by a call on her mobile phone which she took. She then performed fellatio upon him and further penile‑vaginal intercourse followed. He asked C2 if he could ejaculate inside her; she agreed and they both had an orgasm. Neither of these latter two aspects of the evidence had been put to C2 in cross‑examination. The appellant said C2 then said she had to meet friends, they both dressed and he waited with her for a bus. They were standing arm-in-arm at this point, kissed goodnight and waved goodbye to each other.The cross‑examination of the appellant At an early point in the cross‑examination of the appellant the Crown prosecutor elicited that the appellant was aged 47 at the time of the events in question, weighed 130 kg and is 188 cm, or 6 foot 3 inches tall. The cross‑examination generally followed the events of the evening, the appellant's pressuring each of C1 and C2 to drink to excess, their states of intoxication, what took place and what was said in the bedroom. At some points in the course of his cross‑examination, the appellant was required by the Crown prosecutor to acknowledge that certain matters, of which he had given evidence in chief or which he had raised in answer to questions under cross‑examination, had not been put to C1 or C2 during their cross-examination by defence counsel. In the Court of Criminal Appeal eight such occasions were identified. On two of the latter occasions it was put to the appellant that he was making up his evidence in the course of cross‑examination.
Decision
Reasons for decision
KIEFEL CJ, KEANE AND GLEESON JJ
GAGELER J
GORDON J
In the present case, the Crown's impermissible contention of recent invention was of little significance in the determination of the real issue in the trial. The flaw in the trial process cannot be said to have been such that "the jury has not performed its function"[69]. The difficulty for the appellant, which was overwhelming, lay not in the suggestion that his case involved recent invention, but in his account, which was as much a fabrication as his advertisement that he was seeking to find a housemate. Whether the fabrication of his evidence was or was not "recent" was beside the point.[69]See and compare Lane v The Queen (2018) 265 CLR 196 at 210 [48].Conclusion and order The Crown's submissions in relation to the application of the proviso should be accepted. The appellant's conviction did not involve a substantial miscarriage of justice within the meaning of the proviso. The Court of Criminal Appeal was right to dismiss the appeal. The appeal to this Court should be dismissed. In common with criminal appeal statutes in most other States and Territories of Australia, the Criminal Appeal Act 1912 (NSW)[70] provides that, on an appeal against a conviction on indictment, the appellate court:"shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal; provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred."[70]Section 6(1) of the Criminal Appeal Act 1912 (NSW) (emphasis added). Kiefel CJ, Keane and Gleeson JJ find in the present case that "there was a miscarriage of justice" on a ground that was not "the wrong decision of any question of law". Their Honours nevertheless conclude that the appeal against conviction was properly dismissed in the application of the proviso because "no substantial miscarriage of justice has actually occurred". I agree with that finding and that conclusion, and broadly with the reasons expressed by their Honours. My purpose in adding these reasons is squarely to address the content of, and relationship between, the "miscarriage of justice" ground and the "no substantial miscarriage of justice has actually occurred" proviso in a manner that lays to rest reservations I have repeatedly expressed in the past[71] about aspects of the reasoning in Weiss v The Queen[72]. Weiss and the proviso[71]See Baini v The Queen (2012) 246 CLR 469 at 487-488 [50]-[52]; Reeves v The Queen (2013) 88 ALJR 215 at 226 [64]-[66]; 304 ALR 251 at 264-265; Filippou v The Queen (2015) 256 CLR 47 at 74 [78]; Castle v The Queen (2016) 259 CLR 449 at 476-477 [80]-[81]; Kalbasi v Western Australia (2018) 264 CLR 62 at 84-88 [62]-[71]; Lane v The Queen (2018) 265 CLR 196 at 211-212 [52]-[56].[72](2005) 224 CLR 300.
Ratio Decidendi
Legal Principle Established
Established by:
KIEFEL CJ, KEANE AND GLEESON JJ,
GAGELER J,
GORDON J