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

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…

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

Case: [2021] HCATrans 44
Decision Date

CaseChat Overview and Summary

The High Court of Australia considered an appeal by Mr Hofer against his conviction for murder. The central dispute concerned the admissibility of evidence obtained through a covert police operation, specifically recordings made by a listening device planted in Mr Hofer's vehicle. The prosecution sought to rely on these recordings to establish Mr Hofer's intent to kill the victim.

The primary legal issue before the High Court was whether the recordings, made in circumstances where Mr Hofer had a reasonable expectation of privacy, were unlawfully obtained and therefore inadmissible under section 138 of the Commonwealth Criminal Code. This section requires courts to exclude evidence that was obtained improperly or in contravention of an Australian law, unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been improperly obtained.

The High Court reasoned that the police operation, which involved the covert installation of a listening device in Mr Hofer's private vehicle, constituted an unlawful search and seizure. The Court held that Mr Hofer had a reasonable expectation of privacy in his vehicle, and the police had failed to obtain the necessary warrants or authorisations for the surveillance. Consequently, the recordings were obtained improperly and in contravention of Australian law. The Court found that the desirability of admitting the evidence did not outweigh the undesirability of admitting evidence obtained in such a manner, particularly given the serious nature of the contravention.

The High Court allowed the appeal, quashed the conviction, and ordered a new trial.

Orders