Hofer v The Queen

[2021] HCATrans 44

[2021] HCATrans 044

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S163 of 2020

B e t w e e n -

THOMAS HOFER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIEFEL CJ
KEANE J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 12 MARCH 2021, AT 12.07 PM

Copyright in the High Court of Australia

MR T.A. GAME, SC:   If the Court pleases, I appear for the applicant with my learned friend. MR D.P. BARROW.  (instructed by Blair Criminal Lawyers)

MR D.T. KELL, SC:   May it please the Court, I appear with MS K.M. JEFFREYS for the respondent.  (instructed by the Solicitor for Public Prosecutions (NSW))

KIEFEL CJ:   Yes, Mr Game.

MR GAME:If the Court pleases.

KIEFEL CJ:   Is there an extension of time required, Mr Game?

MR GAME:  Yes, your Honour.  It is not opposed, as I understand it.

KIEFEL CJ:   There will be a grant of the extension, then.

MR GAME:  Thank you, your Honour.  May I take your Honours – I should say first, this is a case that concerns a particular aspect of the application of the rule in Browne v Dunn, not concerned with fairness to the witness, to whom a matter has not been put, but for the purpose of discrediting an account given and demonstrating, by virtue of the fact that certain matters were not told, as it were, to the accused’s counsel or instructing solicitors that they bespeak recent invention.

Now, at page 98 of the application book, one sees in the judgment of Justice Macfarlan listed the eight matters or – it does not matter much, Justice Fagan described them as nine, but it is just a breaking up of one of them.  Of those, only the fourth one was clarified by counsel as having been put.  If you go to paragraphs 96 to 99, all of those matters one way or another were within the knowledge of defence counsel, and none of the steps outlined in Birks were taken to correct the position. 

I will come in a moment to the test, or the way that Justice Fagan approached the question, but we say that Justice Macfarlan’s approach to it is uncontroversially correct, identifying irregularity and then concluding, having regard to the nature of the exercise, that the ‑ ‑ ‑ 

KIEFEL CJ:   Mr Game, could I ask you at the outset whether it is your submission that we are in the area of whether or not a question of principle is raised, or whether it is a visitation and, in relation to the former, I think the point has been made in the judgments themselves that this is not the first time that this problem has arisen in the way in which prosecution conducts its case, and intermediate appeal courts have, more than once, if not regularly, cautioned against or, even more strongly suggested that prosecutors should beware of undertaking a course such as this.  So are we in the realm of principle, do you say, or the facts of this particular case?

MR GAME:   So, your Honour, we are in the realm of principle.  If I fail with that assertion I would fall back on the second, but we do say that we are clearly in the question of principle, and the reason is this.  If you go to the – I will just preface what I say by the fact that this cross‑examination could only go to establishing a prior inconsistent statement as a matter of credibility, and leave would be required to do otherwise, having regard to section 104 of the Evidence Act, and the never‑put proposition was directly connected with the proposition that there was – the matter was of recent invention, and that was put at least four or five times in the passage that is extracted.

If you go to paragraph 123 – and we say that is inexorable, by which I mean one just cannot get away from it.  If we go to paragraph 123, this appears to be the driving process of thought by which the majority approached the question and they approached the question by saying that there are “three premises” before one can come to this question.

I might say first that Birks stands for no such principle and I might say second that in Birks itself the Chief Justice expressed surprise, almost astonishment that there was cross‑examination for what might be described as the second and third of these things, suggesting that the accused in that case had a prior knowledge of the intricacies of criminal procedure.

What is put here are really those three things:  the duty of defence counsel, then the third premise that counsel fulfilled his duty.  The second and third things could not even be put to the accused.  They are not matters that would be appropriate subject of cross‑examination.  It was clearly put in this case that what flowed from this suggested error was a recent invention.

So, really, those three things might be regarded as things that one could identify along the way to a circumstance where a proper direction was given about the subject, where the subject was seized such that there really was a situation where the accused had not given such instructions and there really was a case for a recent invention, that those might be seen as sine non qua to the giving of a direction.

GLEESON J:   Mr Game, can I clarify:  are you saying that it is implicit in 123 that those premises needed to be addressed in cross‑examination as opposed to addressed during the course of the trial?

MR GAME:   Yes, your Honour.  If you look at paragraph 124 and then you look at 144, then you look at 162, then you look at 170, then you look at 177 and then you look at 180, that is what is flowing through the treatment of each of them and that is a test that could never be met and the accused could not even be cross-examined along those lines.

I might add this.  Quite importantly, it is the case that prosecuting counsel went to the jury with respect to both complainants up front as his leading submission was this suggestion of recent invention.  That appears in the judgment of Justice - in paragraph 36.  So it is carried through.  It is in the trial.  The proposition of recent invention is carried through to addresses.  So, yes, my answer to your question, Justice Gleeson, is yes, it is implicit that it is the said failure to address the second and third that is the driving force of the majority judgment.

One cannot just say that this case will be ignored.  That puts this case on a wrong set of rails in terms of the assessing of this question and it has never been suggested in other cases.  One does not look at these questions in this way.  One looks at, was the cross‑examination permissible or not, not what was ultimately achieved to enable a proper direction to be given to the jury.  In fact, it is the very absence and the failure of the judge to tell the jury to ignore all this that is a part of the miscarriage. 

So, yes, my answer to that question is, yes, it flows right through the judgment.  But there is also a matter here of principle, in terms of the question of dealing with the irregularity – and dealing with irregularity by a Court of Appeal is not a question of subjectivity.

So, once one has identified an irregularity, one has to look at what flows from it.  For example, if one comes to paragraph 187 – discounting what counsel says about what the rules say on the basis that the jury would not have perceived it that way, which is what is put, that is a failing, in my submission, of the judicial function because what is really the case is this – it is a bit like a recent case in this Court called Bond.  The Crown put their case that way.  They put it assertively.  How can the Court of Appeal say that they would not have so reasoned when that is what is assertively being put to them? 

Same, for example, back at 144 – which is one of the examples of not going through the second and third so‑called premises – premises that do not even really exist.  It is said this cross‑examination had no prejudicial effect.  Who is to say it had no prejudicial effect when that question about propositions not being put – as Justice Macfarlan put – was put to the jury over 20 times in a passage in the entire balance of the – the cross‑examination went for about 40 pages – the last 20 are extracts from the cross‑examination?  You can see the last extracts, in the matters extracted in Justice Macfarlan’s judgment, are all matters that concluded the cross‑examination.

So, if you look at, for example, at page 95 of the application book, from about line 15 – actually, if you go back to 94, you can see from 518, right through to 524 – which is the conclusion of the cross‑examination – that is all that is going on in this cross‑examination.  The very next thing is the prosecutor addresses on it and when he comes to address on the accused’s evidence – with respect to both complainants – the first thing he says is what I have just taken you to in Justice Macfarlan’s judgment.  Nothing is said about it by the judge. 

Then, on appeal – sorry, there is an additional factor which is this – that it is pointed out somewhere that counsel made a correction and counsel did make a correction.  You can see that at 95, line 15.  That is a correction in relation to what was called item 4.  That means that one of them has been clarified.  That leaves the balancing seven, not.  So, the jury would naturally conclude from that, that only in one of those cases did he have instructions on the subject. 

It is all about prior inconsistent statement.  It is not a permissible cross‑examination if it is not.  So, this should not have happened.  It having happened – and this is a miscarriage of justice that befalls the accused – not solely by reason of conduct of prosecuting counsel – but the failure of his own counsel to address the situation at the time – which he well and truly had in his power to do so – and when he gave evidence in the Court of Appeal, was unable to give any explanation for doing so – and then the judge says nothing about the issue.

So, happenstance is that what has happened and if one looks at it as a visitation case, that things have gone gravely wrong in this case with the accused having no role, and he tried to – he tried to point out to the court, that he had given instructions about this, and if you look for example at 96, line 12 he starts to say what his discussions were, and he says;

Don’t tell us what you discussed with your legal team, Mr Hofer.

There are two or three other occasions where he is cut off from doing it.  So this case is a case on all‑fours with the proper application of principle as Justice Macfarlan did in this case, and each of the ingredients is there.  So, that is my answer to the question.  Yes, it is a question of principle, for the two reasons I have given.  One, the intercession of this three-step test which is applied in those – I think it was, one, two, three, four, five, six, different paragraphs dealing with complaints at the conclusion of them, plus the important question about judicial method when one is faced with an irregularity and an assertion of a miscarriage of justice. 

If it comes to the question of proviso, again, we say Justice Macfarlan was correct.  This was about the cross‑examination of the accused.  It was about his credibility, but it was also about his accounts of those things.  So, it did not just go to credibility, it went to the evidence itself.

KIEFEL CJ:   But Mr Game, in this regard, in relation to the proviso, realistically, we are only concerned with the issue which remained before the jury which was the accused’s belief as to the question of consent.

MR GAME:   The question of consent is the issue in this case, but these are the subjects about which the prosecutor was putting to the jury that there was recent invention, and that is what I took you to at paragraph 36.  So, it does affect the assessment of credibility in a profound way, not just in a general credibility way, but because these are incidents, or events that are said to be matters that he was relying on on the question of consent.

So another way of looking at this in proviso language is one of the carve‑outs, if I can call it that in Weiss, was for denials of procedural fairness – I said significant denial – this is a significant denial of procedural fairness because he is put in this position where he is not responsible for any of this, he tries to correct it, he is stopped from doing so, the trial issue continues and completes with the issue never having been corrected.  Now, those really are in substance our submissions.  If the Court pleases. 

KIEFEL CJ:   Thank you.  Yes, Mr Kell.

MR KELL:   Thank you, your Honour.  Your Honours, we say that special leave should be refused by reference to at least two bases.  The first is that the matter properly viewed does not raise a question justifying the grant of special leave and that there is no point of principle arising, and the second goes to the question of – that there are insufficient prospects having regard to the – in particular having regard to the proviso matter.  Can I deal first with the question of principle? 

It is suggested largely that Justice Fagan and the majority have relied upon what are referred to as the three premises from Birks and that that has in some way been a departure from principle – the approach taken in other cases.  If one reads the judgments, it is apparent that the difference between the minority judgment of Justice Macfarlan and the majority judgments is a disagreement over whether there is a particular combination of circumstances that gave rise to sufficient prejudice that would lead to a miscarriage of justice. 

That is an assessment of the particular circumstances, the questions that were asked, the significance of those questions, the significance of answers that were given, the significance of those matters in the trial, and there is no real point of principle arising. 

In terms of the three premises which Justice Fagan referred to at application book 114, what his Honour has done there is to refer then to show the reasoning process by which in cases such as Birks, what is referred as the Birks comment, or the Birks analysis is achieved.  So those three premises are necessary to get to the ability to make a submission along Birks territory. 

Nowhere in the judgment, read fairly, does his Honour say, as has been suggested, that those are matters that are required to be shown in cross‑examination, that those three matters need to be put to the accused or in cross‑examination.  In some cases they may.  In Birks itself there was an attempt to – the accused gave evidence about instructions. 

But his Honour is not suggesting here that those matters needed to be put.  The first issue obviously needs to arise, which is there is a matter – what is said to be the first premise – there is a matter about which the accused later gives evidence that was not put by defence counsel to the relevant Crown witness.  So that is the first premise. 

But the other two premises, which are steps in a reasoning process to make a final submission, are not of that category, and what his Honour is doing in the majority judgment is looking at the absence of the second and third premises as just some indication when looking at whether there is relevant prejudice arising - if there is the absence of those two premises, as there was here, then that is some guidance and indication to the court as to whether the suggested prejudice arises. 

His Honour was right to do so and there is no departure from principle and there is no rigid adherence to that.  That can be seen at application book 114 through to 115, in paragraph 124 of the judgment, the very last sentence on page 114 where his Honour makes clear that:

A matter that has not been put to a Crown witness may in a particular case be so important and the failure to put it so stark that cross‑examination of the accused on the premises of a Birks comment –

that is to say, cross‑examination even at an early stage, so the first premises with a view to propounding a Birks comment:

may carry the clear implication of recent invention even before the reasoning has been spelt out.

So there is no rigid adherence to a particular fixation with the premises in Birks, but just a ‑ ‑ ‑

KIEFEL CJ:   Mr Kell, the questions put in this case were not inconsiderable and they were, as Mr Game has pointed out, put over quite a lengthy period in cross‑examination.  If they were not to suggest to the jury recent invention, what would the jury reasonably take from them?

MR KELL:   In the circumstances of this case as it arose, so that we know looking back that there did not end up being a Birks submission put to the witness or in closing.  The answer to your Honour’s question is that the jury would take very little from it and that is apparent in Justice Fagan’s judgment at application book 129 at paragraph 188, where his Honour ‑ ‑ ‑

KIEFEL CJ:   I take it his Honour is saying there because defence counsel did not help the jury by drawing the threads together at the end and making his ultimate point.  But the question is did he need to?  He went into each of the eight matters, seven of which remained relevant, in some detail, in cross‑examination.  One imagines he did it in a particular manner, as consistent with the nature of the questions.

The point I was making with these was the question is what could the jury reasonably infer from them?  They would assume that the prosecutor was making some kind of point and that it was something that was adverse to the accused.  Is Justice Fagan saying anything more than that his Honour considered that it was necessary for the defence counsel to draw the inference for the jury before it became operable?

MR KELL:   No.  What he is saying in those paragraphs, rightly, is that what is suggested as Birks’ reasoning – and that can be seen by the submissions that are recorded in paragraph 186 – is not intuitive to a jury or to the lay person, that these are terms of art and professional rules of etiquette which are particular to the legal profession but are not assumed to be generally known. 

As his Honour records here, the fact that in the context of particular cross-examination, as happened here, particular points arose where, on one aspect, the accused gives evidence, the prosecutor then notes, “Well, that matter was not put by your counsel”, instantly, on their feet and then as Justice Fagan knows – records it later goes nowhere.  All that means is that ‑ ‑ ‑

KEANE J:    But that is not how it happened.  That was not put by your counsel - you are making it up as you go along.  That is what actually happened.

MR KELL:   There were two instances of references to making it up and fabrication and that appears to be at application book page 95 at point 5 in respect of one of the allegations, and also 128 in respect of the unofficial boyfriend passage.  In respect of a number of the other matters, some four of them, and that is subject to checking but that is our understanding here – in respect of four of them, the accused responded by indicating that he had – it was a matter in which he had instructed his – or was a matter on which he had given instructions to his counsel and there it had been left, so there would be no – so in answer to the question, what is left for the jury is what is recorded in paragraph 188.  The jury was never told why if at all it mattered that the defence counsel had failed to ask the complainants about a handful of details of which the applicant later gave evidence.

What is missing is any submissions, any analysis or argument that is put to the jury about the second and third premises of Birks that would lead to a conclusion, or could lead to a conclusion that because the question was not asked of – the matter was not put to the complainant, as a number of steps the accused would be expected to provide instructions to defence counsel, defence counsel would be expected to act on those instructions there, and the matter was not put, therefore it was not put so it must have recently have been invented.

To get to that last allegation, to get to that matter arising in Birks, you have to have those second and third premises, and they were absent here and going back to the question of principle, Justice Fagan’s reference to the Birks premise as giving guidance on the question of whether there was the requisite prejudice arising here is not inconsistent on principle and ‑ ‑ ‑

KIEFEL CJ:   That is so - perhaps part of the question of principle might be whether or not Birks is to be taken as some kind of test that an appellant, an accused who was not accused, has to overcome before they can show prejudice.

MR KELL:   It is not to be taken that way and it was not taken by ‑ ‑ ‑

KIEFEL CJ:   I do not understand you to put that, Mr Kell.

MR KELL:   Yes.

KIEFEL CJ:   Could I take you to special leave book page 95 at the top?  Accepting what you say about the questions in Birks being those for guidance, the questions here which were put – and which, this being an example, like those referred to by Mr Game before, where the accused attempted to answer but he was not permitted, where is the jury left in relation to this?  What is the jury to take from this – simply that the matter was not put to – there has to be a concession, a yes or no answer that the matter was not put by the accused’s counsel to the prosecution witnesses, but that the accused is trying to say something.  He is trying to say it should have been and then he is cut off, so are we in an area now where it might not be clear that it is recent invention to the jury, but they might be very confused about just what it is, but they know that it is going somehow to the credit of the accused.  Is that area that we are in, do you think?

MR KELL:   Can I answer it this way - I think your Honour has taken us to page 95 of the application book.

KIEFEL CJ:   Yes.

MR KELL:   That instance, in our respectful opinion, goes nowhere when one looks at – sorry, the instance relied upon by the applicant - when one looks at about point 4 of the page where there is the apology which is offered by the Crown Prosecutor, that trial counsel has just pointed out that:

some of my earlier questions were unfair to you or unfair to – in any event, that in fact [trial counsel] did put to [C2] that –

and so on.  So that served to ‑ ‑ ‑ 

KIEFEL CJ:   Then it immediately goes on with the next question, and at halfway down the page, in relation to the further question says, so you were:

essentially making your evidence up as you went along ‑ ‑ ‑

MR KELL:   Yes, that is right and on a different – yes, and ‑ ‑ ‑ 

KIEFEL CJ:   But in relation to a series of questions, I mean, why do not the references to him making up his evidence infect this whole line of questioning?

MR KELL:   Well, it is only – it can only be relevantly prejudicial if it is making up your evidence because the matter was never put to the complainant by your counsel, it is not the allegation of making up your evidence.  That is an allegation to the effect that the witness’ evidence is untruthful in a particular respect, and that can be done – you know, in differing contexts that are far removed from here, depending on what the evidence has given.  But one is still left with it - that all that is happening is what is referred to conveniently as the first premise in Birks, and nothing more.  Can I also just add this, in terms of visitation, which your Honour referred to as to whether, beyond the question of principle ‑ ‑ ‑

KIEFEL CJ:   Yes.

MR KELL:   ‑ ‑ ‑ ‑ is this a visitation case?  In our respectful submission, and putting to one side the difficulties with prospects of success, because of the proviso, the answer on visitation is there is no requirement or need for this Court to grant special leave on the basis of a visitation case, because this very judgment of the Court of Criminal Appeal involved an opportunity where both Justice Fullerton and Justice Fagan, in some detail and some depth, provided guidance to both Crown Prosecutors and the profession about this very topic, including the caution – and emphasised, drew together recent cases, and the cases in this area, and emphasised the caution that is needed to be adopted and utilised in this context.  So there is no need for this - we respectfully submit there is no need for this Court to take this matter up as a visitation case, given that guidance that has already been provided.

KIEFEL CJ:   What do you say - I would appreciate, speaking for myself, some assistance with the proviso question. 

MR KELL:   Yes, and I will turn to that very quickly.  Just before I do, in that – I will turn to the proviso now.  We say, your Honour, that the majority judges were correct in holding that if one were to find that there was prejudice arising here of any degree, that the subject matter of the impugned question was for the reasons that Justice Fagan carefully explained, generally ‑ ‑ ‑ 

KIEFEL CJ:   The difficulty I have, with respect, with his Honour’s reasons, is he appears to approach the proviso on the basis of whether or not the jury could have – whether or not this was of any consequence to the jury.  I do not really understand that to be the proviso test.

MR KELL:   Well, his Honour goes through the general factors that would go to the proviso, including the strength of the Crown case, and also the absence of any suggestion in the submissions about drawing the particular inferences and, again, it is an assessment about whether there is a ‑ ‑ ‑ 

KIEFEL CJ:   Perhaps the clearest thing – the clearest statement by his Honour is at paragraph 196, where he says:

The Crown case was of such strength on the central issue of whether the applicant knew the complainants did not consent that one may be confident there was no substantial miscarriage of justice ‑ ‑ ‑

MR KELL:   Yes, coupled with – yes, your Honour.

KIEFEL CJ:   What were the factors which made the Crown case so strong in relation to the applicant’s knowledge that the complainants did not consent, and could I ask you to address this as well.  That also involves the question of whether he was reckless in relation to the question of consent as well, does it not? 

MR KELL:   Yes, and in terms of – within the proviso discussion itself, your Honour will see at paragraph 191 that his Honour addresses the aspect of lack of consent and also that the applicant knew the complainants were not consenting – at least being reckless.  The applicant’s evidence included, and his Honour continues in the paragraph there.  His Honour has also referred to the strong evidence of corroboration for both complainants, which included the evidence of the “text messages and immediate complaint” ‑ ‑ ‑ 

KIEFEL CJ:   You can complete your submissions, Mr Kell, on this.

MR KELL:   Sorry, the text messages for each of the complainant’s immediate complaint, and that there was:

extreme distress of each of them in the immediate aftermath.  His evidence that he thought that –

each agreed – this is within paragraph 191:

was objectively improbable given the age difference, the brief period over which each complainant had made his acquaintance and the limited, non‑romantic business purpose for which they had met with him –

which was, as your Honours would be aware, the online advertisement for a room and accommodation, and:

The incontestable evidence that the applicant had plied each of these young women with alcohol evinced his intent, from the outset, to reduce their capacity for resistance -

and that went to the question of reckless disregard as to consent. 

KIEFEL CJ:   Yes, thank you, Mr Kell.

MR KELL:   Thank you.

KIEFEL CJ:   Mr Game, in relation to the question of the proviso, could it fairly be said on the evidence that the Crown case was strong in relation to reckless disregard for the complainant’s consent because there was evidence which the jury could readily accept that all of what occurred was planned?

MR GAME:   Your Honour, it was not quite put that way.  The cases were dealt with as two separate cases and ‑ ‑ ‑

KIEFEL CJ:   I mean planned on each occasion.

MR GAME:   Your Honour, that is not how the Court of Criminal Appeal has posed it and the way in which – I hope I do not divert your Honour’s question, but paragraph 196 is not the proviso question that is framed in paragraph 196.  What Justice Macfarlan says at 102, paragraphs 60 and 61, in our submission, is correct, namely that this is about the very question which is assessment of the credibility of the accused who has gone into the witness box, given evidence about the issue of consent. 

On the critical issue, contrary to the Crown’s submission, the Birks submission has been made against him and that has been put at the heart of the case put against him.  So it is two things:  one, that in terms of the sine qua non of Weiss, the jury’s verdict is really not something one can turn to and it is a tall order to say it would not be open in the language of Baiada Poultry or Baini ‑ to not be open to acquit is the language of those cases – that that is a tall order when one has that which is pointed out by Justice Macfarlan in paragraphs 59 and 60 ‑ namely, as I say, that this is standing in the way of assessment of credibility.

I also put this case a different way, which is this or another way perhaps of putting the same set of propositions.  It is a denial of procedural fairness if “happenstance” means that the accused has been cut out of explaining the situation and, by virtue of the conduct of the prosecutor, defence counsel and then the judge not correcting, he has a trial in which, upfront the centrepiece is this idea of recent invention and that is put as the thing against him.

So it is no good in our submission to then turn around and say, absent that submission, the Crown did not need to do that because the evidence was strong enough for the Crown not to do that.  That is what that really amounts to.  So, in our submission, what might be on the face of it the strength of the Crown case does not stand in the way of declining to apply the proviso.  That is how we address the issue, if your Honour pleases.

KIEFEL CJ:   The Court will adjourn for a brief time to consider the course that it will take.

AT 12.48 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.55 PM:

KIEFEL CJ:   There will be a grant of special leave in this matter. 

MR GAME:   If the Court pleases.

KIEFEL CJ:   Mr Game, how long do you estimate it will take?

MR GAME:   Half a day, your Honour.

KIEFEL CJ:   Would you agree, Mr Kell?

MR KELL:   Yes, certainly not more than a day.

KIEFEL CJ:   Well, not more than a day, or half a day?

MR KELL:   Half a day, your Honour.  We will make it half a day.

KIEFEL CJ:   Thank you.  The Court will adjourn until 2.00 pm.

AT 12.56 PM THE MATTER WAS CONCLUDED