Hofer v The Queen

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.