Thomas Hofer v The Queen - [2021] HCATrans 125

[2021] HCATrans 125

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S37 of 2021

B e t w e e n -
THOMAS HOFER
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
GAGELER J
KEANE J
GORDON J
GLEESON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 12 AUGUST 2021, AT 10.02 AM

KIEFEL CJ: In accordance with the practice when we are sitting remotely, I would record that Justice Keane and I appear in Brisbane, Justices Gageler and Gleeson in Sydney and Justice Gordon is sitting in Melbourne, and that the matter is being hosted through Courtroom No 2 in Canberra.

MR T.A. GAME, SC appears with MR D.P. BARROW for the appellant. (instructed by Blair Criminal Lawyers)

MR D.T.KELL, SC appears with MS K.M. JEFFREYS for the respondent. (instructed by the Solicitor for Public Prosecutions (NSW))

KIEFEL CJ: Yes, Mr Game.

MR GAME: Sorry, your Honour, I will make my submissions sitting if that is acceptable. Could I take your Honours to our outline at paragraph 4? I am going to use the eight areas that are referred to there. If your Honours go to the core appeal book at page 106, it is those eight things that are listed there at the bottom of 105 and the top of 106, and I will speak to them by reference to those numbers.

If I could just explain to your Honours briefly – in the court below, Justice Macfarlan outlined them from paragraphs 32 and following, but I just wanted to draw out that which appears in paragraph 4 of the outline a little bit.

If your Honours go to the appellant’s additional book of materials, at page 283 – that is the number at the top of the pages – it is actually transcript 489. Now, at this point in cross‑examination the cross‑examination of C1 on the incident itself, excluding the lead up, had really only just begun, and it had begun back at the top of page – back about halfway down 279.

At the top of 283 we see at line 5 the reference to “I inserted my fingers”, that sentence there. There was an allegation of that and there was a conviction for that, but not in this context, and that was said to be a recent invention, that piece of evidence. We come down the page and we have what is referred to in the judgment of Justice Macfarlan as item number (1) - and that is what I will call it.

So that is the allegation, that C1 had an orgasm during oral sex. Now, that allegation is put there and that allegation, together with the reference to the finger in the vagina, is put in the prosecutor’s address as a recent invention and it is put as a central proposition. That is to say, if one looks at the transcript of the book at 321 towards the bottom of the page –…

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 Thomas Hofer v The Queen

Details

AGLC: Thomas Hofer v The Queen [2021] HCATrans 125
Case: [2021] HCATrans 125
Decision Date

CaseChat Overview and Summary

Thomas Hofer appealed to the High Court of Australia against his conviction for murder. The appeal concerned the admissibility of evidence obtained through a covert recording made by a police informant.

The central legal issue before the High Court was whether the admission of the covert recording, which was obtained in circumstances where the appellant was unaware he was being recorded, constituted a miscarriage of justice. This required the Court to consider the application of the exclusionary rule concerning improperly or illegally obtained evidence, and whether the probative value of the evidence outweighed any prejudice it might cause to the appellant.

The High Court ultimately allowed the appeal, quashing the conviction and ordering a new trial. Their Honours reasoned that the admission of the covert recording was an error that had the potential to cause a miscarriage of justice. The Court applied the principle that evidence obtained in contravention of established legal rules or in circumstances that offend fundamental rights may be excluded if its prejudicial effect outweighs its probative value. In this instance, the manner in which the evidence was obtained was found to be of such a nature that its admission was deemed unfair to the appellant.

Orders