Hofer v The Queen [2021] HCA 36

The appellant Thomas Hofer was convicted after a trial in the District Court of New South Wales of eight counts of having sexual intercourse with another person knowing that the other person does not consent, contrary to s 61I of the Crimes Act 1900 (NSW). He was sentenced to nine years and nine months in prison for eight rapes against one woman, and three rapes against another woman, a teenager who had responded to the same ad.

The charges arose from two incidents which occurred on consecutive days.

With respect to the incidents:

→ each of the complainants had responded to an online advertisement placed by the appellant offering to rent a bedroom in a “one bedroom house”, preferably to a female aged between 21 and 35
→ arrangements were made for each complainant to meet with the appellant
→ each complainant had drunk alcohol to excess at the insistence of the appellant
→ the appellant took each complainant to view the room while she was intoxicated
→ sexual intercourse of some kind then took place in the room.

The appellant’s case at trial, as put by his counsel, was “not whether the two women … were consenting to have sex with him but rather whether his perception of their behaviour throughout the respective evenings led him to believe that they were consenting to having sex with him”.

Therefore, the primary issue at trial was whether the appellant believed that each complainant consented to having sex with him or whether he was reckless as to whether they were consenting.

The appellant gave evidence inter alia that he believed that each complainant had consented.

There were eight matters that the appellant gave evidence about which the Crown prosecutor required him to concede in cross examination that his trial counsel had failed to put to the complainants:

(1) The appellant’s evidence in chief that C1 had an orgasm during oral sex which he performed on her. The appellant was asked by the Crown prosecutor if he had heard that fact being put by his counsel to C1 in cross‑examination. He said that he could not recall.

(2) in cross examination it was put to the him that C2 had told him that she was a lesbian. He denied that was said and added that she had said she was bisexual. He was then asked whether he had heard that matter put to C2 at any stage. He agreed that it had not been put to her but pointed out that not only had she not said that she was a lesbian, she had also implied that she had been together sexually with an African man. Pressed further, the appellant agreed that C2 had not been asked in cross‑examination whether she was bisexual and agreed that she had not been challenged as to her statement to him that she was a lesbian. He added that “may be [sic] my barrister should have cross‑examined her better”.

(3) The Crown prosecutor put to the appellant that C2 showed no sexual interest in him. He responded by saying that he considered her kissing him and putting her tongue in his mouth to be quite sexual. He agreed that this matter had not been put to C2.

(4) The Crown prosecutor put to the appellant that C2 had not been cross‑examined as to her having performed oral sex upon the appellant. In this respect the prosecutor was mistaken, as he subsequently realised. He apologised to the jury for having suggested this. But by this time, the prosecutor had put the question to the appellant four times and made the point that C2 had not had the opportunity to comment. The appellant incorrectly accepted that this was the case and further responded by implying that his barrister may have been negligent or that the appellant had had a limited opportunity to speak with him before the trial.

(5) The appellant made similar comments when it was pointed out to him, and he agreed, that it had not been put to C2 that he had asked if he could ejaculate inside her and she had agreed. He said that “again” it should have been put by his barrister. He attempted to refer to notes that he had given to his barrister on the topic, but was confined by the trial judge to a “yes” or “no” answer to the question.

(6) In the course of questioning as to the matter in (5) the appellant said that he believed that both he and C2 had an orgasm. He agreed that it had never been suggested to C2 that she had had an orgasm:

“Q. And you never heard any suggestion put to her that she had an orgasm, correct?

A. Correct

Q. Were you essentially making your evidence up as you went along, Mr Hofer?”

(7) This point was made again by the prosecutor in connection with the appellant’s response to questions about the CCTV footage which showed C2 clearly in distress after the bus pulled away from the bus stop:

“Q. … you saw, didn’t you and we all saw, [C2’s] demeanour, a very, very short time after the bus pulled away didn’t you?”

The appellant then suggested that C2’s distress was connected with her “non‑official” boyfriend having heard her breathing heavily whilst the appellant and C2 were having consensual sex, the boyfriend having phoned her at that time. The prosecutor then asked:

“Q. I see. Mr Hofer, did you hear that put to [C2] at any stage?

A. No. It was not.

Q. No it wasn’t, was it. Are you just making things up as you go along Mr Hofer?

A. No I am not.

Q. Are you simply giving evidence and doing the best you can to meet what can be objectively proven by the Crown case?”

(8) The appellant denied that he had said to C2, when they first entered the bedroom, “Let’s do it”. In cross‑examination he sought to make the point that this was not the kind of language he would normally use. He said that he believed the police must have coached C2 and also C1 to say these words. It was some time before the appellant finally agreed that this allegation had not been put to C1 or C2 or any witness for the Crown.

On two of those occasions, it was put to him that he was making up his evidence in the course of cross‑examination.

s 6(1) of the Criminal Appeal Act 1912 (NSW) relevantly provides:

“The court on any appeal … against conviction shall allow the appeal if it is of opinion that the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported, having regard to the evidence, or that the judgment of the court of trial should be set aside on the ground of the wrong decision of any question of law, or that on any other ground whatsoever there was a miscarriage of justice, and in any other case shall dismiss the appeal”.

The proviso to s 6 provides that:

“the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.”

In Browne v Dunn (1893) 6 R 67, a rule was laid down that where it is intended that the evidence of a witness on a particular matter should not be accepted, that which is to be relied upon to impugn the witness’s testimony should be put to the witness by the cross‑examiner for his or her comment or explanation.

In R v Birks (1990) 19 NSWLR 677 at 683 and 685 the New South Wales Court of Criminal Appeal said that “a party is bound by the conduct of his or her counsel, and counsel have a wide discretion as to the manner in which proceedings are conducted”, however, in that case, it was  held that counsel’s conduct in failing to cross-examine the complainant on a material matter in accordance with his instructions and failing to take steps to minimise the damage flowing from that failure constituted “flagrant incompetence” and had brought about a miscarriage of justice.

In Nudd v R [2006] HCA 9, the High Court held that the appellant in that case had not been deprived of a fair chance of acquittal despite the serious errors of his counsel, because the Crown case against him was overwhelming.

In Weiss v R [2005] HCA 81; (2005) 224 CLR 300 at 314 [35], 317 [44] the High Court held that whether the proviso applies entails an appellate court’s assessment of an appellant’s guilt rather than “by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do”.

In Kalbasi v Western Australia [2018] HCA 7, Kiefel CJ, Bell, Keane and Gordon JJ explained that the error which has occurred at trial may be such as to prevent the appellate court from making that assessment:

“Weiss requires the appellate court to consider the nature and effect of the error in every case. This is because some errors will prevent the appellate court from being able to assess whether guilt was proved to the criminal standard. These may include, but are not limited to, cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury’s consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence. In such cases … regardless of the apparent strength of the prosecution case, the appellate court cannot be satisfied that guilt has been proved. Assessing the application of the proviso by reference to considerations of ‘process’ and ‘outcome’ may or may not be helpful provided always that the former takes into account the capacity of the error to deprive the appellate court of the ability to justly assess the latter.”

The appellant appealed on grounds that a miscarriage of justice had occurred because the Crown prosecutor should not have cross examined him on the basis of a what his counsel had failed to put to the complainants and that alternatively his trial counsel has been incompetent due to those failures.

Evidence before the Court of Criminal Appeal by defence counsel was that he decided not to put the appellant’s statements about C1 having had an orgasm to her because not only did he consider them irrelevant, he also considered that it was likely to have the effect of turning the jury against the appellant. He said he had discussed this problem with the appellant.

Majority decision

The Court of Criminal Appeal by a majority dismissed the appeal and concluded that there was therefore no miscarriage of justice. Fullerton and Fagan JJ held that a miscarriage will not inevitably follow where there has been no basis for a cross‑examination of this kind and that consideration must be given to the effect it had on the trial.

Fagan J considered that the questioning had been limited, inconclusive and ineffectual and was not followed by an invitation to infer fabrication.

Fagan J said that the appellant’s guilt was proved beyond reasonable doubt, as “upon the whole of the evidence at trial and taking into account the jury’s verdict” because the evidence of the appellant of his belief as to consent was “so obviously false that it carrie[d] no weight at all”

The majority also held that an alternative ground, that the appellant’s trial miscarried on account of the incompetence of his counsel also failed.

Fagan J concluded that if, contrary to his Honour’s view, a miscarriage of justice had occurred at trial, the proviso would have justified the dismissal of the appeal. Fullerton J agreed with Fagan J that, had a miscarriage of justice been established, the proviso would have applied. Fagan J, having earlier noted that the appellant was “a 130 kg virtual stranger” to each complainant, went on to say that:

“His evidence that he thought they agreed 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. The incontestable evidence that the [appellant] had plied each of these young women with alcohol evinced his intent, from the outset, to reduce their capacity for resistance; it showed his reckless disregard for whether they consented or not.”

Macfarlan JA’s dissent

Macfarlan JA dissented, holding that there was no basis for the questioning by the Crown, impliedly as to the lack of instructions by the appellant and concluded that the appellant’s interests were prejudiced to a significant extent by the impermissible questions and the absence of any attempt by the trial judge to attempt to cure that prejudice.

Macfarlan JA also held that the proviso did not apply because the impermissible cross‑examination was apt to have infected the jury’s verdicts; and, that being so, he could not be satisfied that the evidence at trial proved the appellant’s guilt beyond reasonable doubt.

Majority decision

Kiefel CJ, Keane and Gleeson JJ accepted that the Crown prosecutor’s cross-examination of the appellant was improper:

“The questioning undertaken by the prosecution of the appellant departed from the standards of a trial to which an accused is entitled and the standards of fairness which must attend it[24]. The questioning was such as to imply that the appellant was obliged to provide an explanation as to why matters had not been put to C1 or C2. This suggested he possessed information which he had not given counsel by way of instructions. The unfairness in this regard was compounded when the appellant was not permitted by the trial judge to provide an answer and by defence counsel not informing the court that he had those instructions. The attack upon the appellant’s credit by assertions of recent invention was based upon an assumption which was not warranted. All of these matters were highly prejudicial to the appellant…
It is a sufficient departure from the process of a criminal trial that a highly prejudicial cross‑examination of the accused as to credit proceeded upon an unfounded assumption. In this case, evidence placed before the Court of Criminal Appeal showed that the assumption was in fact wrong. Instructions had in fact been given by the appellant in relation to seven of the eight matters. In relation to the eighth matter, defence counsel had read the appellant’s psychiatric report…
It cannot be inferred that the jury would not attach any importance to what arose from the cross‑examination. There were a number of matters which were identified as not having been put to C1 or C2. The persistent requirement that the appellant acknowledge that fact was likely to have suggested to the jury that questions were being asked about more than what defence counsel should have done by way of fairness to the complainants. The questions clearly required the appellant to provide some sort of explanation, a view which would have been confirmed when he attempted to do so. The purpose of the line of questioning, that the appellant should not be believed as to these accounts, was put beyond doubt when, in relation to the sixth and seventh matters, the prosecutor alleged that the appellant had made up his evidence in the course of the cross‑examination. It was not necessary for the prosecution to go further than it did in address in pointing out the process of reasoning in which the jury might engage to cause unfair prejudice to the appellant. The prosecutor had effectively invited the jury to reject the appellant’s evidence as not credible.”

Kiefel CJ, Keane and Gleeson JJ also criticised the trial judge for not addressing these issues:

“The prejudice to the appellant was not addressed by the trial judge, as it should have been. It was necessary that the trial judge put the omissions in perspective, discount any assumption as to why they occurred by reference to other possibilities and warn the jury about drawing any inference on the basis of a mere assumption. Absent such directions there was a real chance that the jury may have assumed that the reason for the omission was that the appellant had changed or more recently made up his story.”

Kiefel CJ, Keane and Gleeson JJ however held that the proviso did apply as the appellant’s guilt was established beyond reasonable doubt.

This was so because of the combination of the lack of consent by each complainant was not contested by defence counsel at trial, and the glaring improbability of the aspects of the appellant’s evidence material to his belief as to the consent of each of the complainants. These led to “no reasonable doubt that the appellant was, at the least, reckless as to whether he acted with her consent.”

Kiefel CJ, Keane and Gleeson JJ concluded that:

“A consideration of the appellant’s evidence, together with the evidence that was common ground between the parties, inevitably leads to the conclusion that the appellant’s evidence was so glaringly improbable that it could not give rise to a reasonable doubt as to his guilt. To explain why this is so, it is necessary first to consider the function of an appellate court in the application of the proviso.”

Kiefel CJ, Keane and Gleeson JJ disagreed with Macfarlan JA’s judgment about the proviso in the Court of Criminal Appeal that this was a case which turns on the jury’s preference for the evidence of one witness over another witness, opining that it was apparent that the evidence of the appellant is glaringly improbable.

Kiefel CJ, Keane and Gleeson JJ agreed with Fagan J’s observations about the problems with the appellant’s evidence and added the following points:

“To these undisputed aspects of the evidence noted by Fagan J may be added the truly extraordinary circumstance that the appellant’s assaults on the complainants occurred on consecutive nights upon young women who had responded to the appellant’s offer of accommodation. The extraordinary circumstance that the incidents in question occurred on consecutive nights is significant, not because of coincidence or tendency, but because of what it reveals of the appellant’s modus operandi and the intention which informed his plans. On two nights in a row, with different young women, the appellant pursued a course of conduct that was plainly focused upon having sex with them. The evident purpose of the appellant’s plan was to reduce each complainant’s agency by isolating her in his house, where, affected by alcohol, she would be at his mercy by reason of his height and weight. Plying each complainant with alcohol before bringing her back to his house was also part of that plan, which had nothing to do with the search for a possible housemate.
It is an affront to common sense to suggest that the appellant, in fabricating the pretext of offering to share his house, was acting otherwise than with the intention to lure young women back to his house and, having plied them with alcohol before doing so, to have sex with them irrespective of their wishes. There is no room here for reasonable doubt that in the case of each complainant the sexual assaults which the appellant perpetrated were planned in advance and were to be executed without regard to the wishes of the complainants…
[trial] Counsel’s appreciation, both of the irrelevance of [those aspects of the appellant’s evidence that were said by the Crown to be matters of recent invention] to the issues in the case, and the likely adverse effect that the appellant’s evidence would have upon the jury as the tribunal of fact, was plainly correct. The appellant’s attempt to present his evening with each complainant as “a date” can be seen as a fabrication that is of a piece with the fabrication of his advertisement for a housemate. Any reasonable tribunal would have regarded this evidence as bordering on fantasy…
In the extraordinary circumstances of this case, just as no reasonable tribunal of fact could possibly have been beguiled by the appellant’s fabrications, so an appellate court invited to apply the proviso is not obliged to entertain these fantastical suggestions as giving rise to a reasonable doubt as to the appellant’s guilt.”

Kiefel CJ, Keane and Gleeson JJ also held that:

“A suggestion that any impermissible cross‑examination based on a supposed breach by the accused of the rule in Browne v Dunn is such a failure of due process that the proviso cannot be applied cannot stand with this Court’s decision in MWJ v The Queen… the Crown’s impermissible contention of recent invention was of little significance in the determination of the real issue in the trial. The flaw in the trial process cannot be said to have been such that “the jury has not performed its function”.

Gageler J agreed with the majority.

The result was that the appeal was dismissed.

Gordon J’s dissent

Gordon J agreed that there was a “miscarriage of justice” at the trial of the appellant but disagreed with the majority conclusion that “no substantial miscarriage of justice has actually occurred”.

Gordon J held that a ground of appeal can only be established if it also results in “the appellate court to conclude that the error might have made a difference”. By contrast, “the appellate court cannot apply the proviso unless it is persuaded that the admissible evidence at trial proved the accused’s guilt beyond reasonable doubt”.

The application of the rule in Browne v Dunn (1893) 6 R 67 is well established. This is a case that deals with some of the possible consequences of non-compliance with the rule. In this case, the Crown prosecutor’s use of such an omission to attack the credibility of the complainant was held to be unfair. Nevertheless, because the issue for trial was the appellant’s beliefs with respect to consent, and his evidence on that issue was “glaringly improbable”, the proviso applied because there was no substantial miscarriage of justice.

This case should put an end to the practice in NSW of Crown prosecutors impeaching the credit of an accused who gives evidence by making a point of the failure to cross-examine prosecution witnesses about their evidence by their counsel. As this case shows, it cannot be safely assumed that an accused person has given evidence which is contrary to the instructions that they gave their own lawyers.