Hofer v The Queen [2021] HCA 36

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, KEANE, GORDON AND GLEESON JJ

THOMAS HOFER APPELLANT

AND

THE QUEEN RESPONDENT

Hofer v The Queen

[2021] HCA 36

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".