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Court of Criminal Appeal 18 October 2019

Hofer v R

[2019] NSWCCA 244

Sexual offences
CRIMINAL PROCEDURE TRIAL WHETHER PROSECUTOR IMPERMISSIBLY CROSS EXAMINATION APPEAL DISMISSED MENTAL HEALTH CRIMINAL PROCEEDINGS

Citation: Hofer v R [2019] NSWCCA 244
Court: NSW Court of Criminal Appeal
Date: 18 October 2019
Judge(s): Macfarlan JA; Fullerton J; Fagan J

Background

The appellant was convicted in the District Court on eight counts of sexual intercourse without consent under s 61I of the Crimes Act 1900 (NSW), arising from separate incidents involving two complainants over consecutive evenings in October 2014. Both complainants had responded to an online flatmate advertisement placed by the appellant, and both alleged that he had plied them with alcohol before taking them to his apartment and engaging in non-consensual sexual activity. The appellant was sentenced to an overall term of 9 years 9 months' imprisonment, with a non-parole period of 6 years 6 months.

The appellant brought three grounds of appeal. He argued that his fitness to stand trial had been unresolved at the time of the proceedings, that the Crown prosecutor had asked impermissible questions during cross-examination, and that his trial counsel had been incompetent.

  • Whether a miscarriage of justice arose because the appellant's fitness to be tried was unresolved at the time of the trial (Ground 1).
  • Whether the Crown prosecutor's cross-examination of the appellant about matters not put to the complainants during cross-examination was impermissible and caused the trial to miscarry (Ground 2).
  • Whether trial counsel's failures in handling that cross-examination and related procedural steps constituted incompetence amounting to a miscarriage of justice (Ground 3).

Decision

Ground 1: Fitness to be tried. Macfarlan JA, with whom Fullerton J agreed, held that the fitness ground was not made out. Because the issue was raised for the first time on appeal, the Court examined the appellant's conduct during trial, including how he gave evidence and instructed his legal representatives. The evidence did not establish an unresolved question about fitness sufficient to demonstrate a miscarriage of justice.

Ground 2: Impermissible cross-examination. The background legal principle here concerns the so-called Birks comment: where defence counsel fails to put the accused's version to Crown witnesses during cross-examination, a prosecutor may later seek to use that failure to suggest the accused fabricated evidence given at trial. The Court considered whether the prosecutor's questions to the appellant along those lines were impermissible. By majority (Fullerton J and Fagan J), the Court held that the impugned cross-examination was not sufficiently prejudicial to have caused a miscarriage of justice. Fagan J characterised the questioning as ineffective and insignificant in its impact on the trial.

Fullerton J, while agreeing the ground failed, endorsed Fagan J's broader concerns about prosecutorial caution. Her Honour observed that an ill-considered cross-examination on "matters not put" risks driving a wedge between an accused and counsel, potentially exposing privileged communications, or penalising the accused for counsel's own ineptitude. The obligation on a prosecutor to refrain from cross-examination that may cause unfairness was described as fundamental to a fair trial.

Ground 3: Incompetence of counsel. Fagan J rejected the incompetence ground for the same reasons as Ground 2: because the cross-examination had been ineffective and insignificant, the related failures by defence counsel to press objections or seek protective directions did not amount to a miscarriage of justice.

Orders Made

There is a material inconsistency between the orders proposed by Macfarlan JA and those proposed by Fullerton J, which reflects the division within the Court. Based on the reasons and the majority position:

  • Leave to appeal granted, to the extent necessary.
  • Extensions of time granted.
  • Appeal dismissed (per the majority: Fullerton J and Fagan J).

Note: The orders section extracted from the judgment contains two competing sets of proposed orders. Macfarlan JA proposed quashing the convictions and directing a retrial, while Fullerton J (with whom Fagan J agreed on grounds 2 and 3) proposed dismissing the appeal. The majority orders dismissing the appeal reflect the outcome of the decision.

Key Takeaways

  • By majority, the Court of Criminal Appeal confirmed that cross-examination of an accused about matters not put to Crown witnesses (a "Birks comment" scenario) does not automatically cause a miscarriage of justice; the actual prejudicial effect on the trial must be assessed.
  • A prosecutor's duty of fairness requires that cross-examination of an accused designed to suggest recent invention or fabrication, based on defence counsel's failure to put the accused's version to Crown witnesses, should only be pursued where there is a proper basis to do so.
  • Where the explanation for defence counsel's failure to cross-examine a Crown witness might expose privileged communications, or simply reflects counsel's own carelessness, allowing the prosecutor to exploit that failure risks penalising the accused unfairly.
  • Fitness to stand trial, when raised for the first time on appeal, will be assessed by reference to the totality of the accused's conduct during the trial proceedings, including the quality of instructions given and evidence delivered.
  • No miscarriage of justice was established on the incompetence ground where the underlying cross-examination was found to be ineffective and insignificant in its impact.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 61I
- Criminal Appeal Act 1912 (NSW), s 6(1)
- Mental Health (Forensic Provisions) Act 1900 (NSW)

Cases:
- Browne v Dunn (1893) 6 R 67
- R v Birks (referenced throughout but not listed in metadata)
- Llewellyn v R [2011] NSWCCA 66
- MWJ v The Queen [2005] HCA 74
- Baini v The Queen (2012) 246 CLR 469
- Kalbasi v Western Australia [2018] HCA 7
- Castle v The Queen (2016) 259 CLR 449
- Kesavarajah v The Queen (1994) 181 CLR 230
- Eastman v The Queen (2000) 203 CLR 1
- OKS v Western Australia [2019] HCA 10
- Collins v The Queen [2018] HCA 18
- Douglass v The Queen [2012] HCA 34
- King v The Queen (2012) 245 CLR 588
- Lysle v R [2012] NSWCCA 20
- Picker v R [2002] NSWCCA 78
- Ali v The Queen [2005] HCA 8
- Nudd v The Queen [2006] HCA 9
- Abdallah v The Queen [2001] NSWCCA 506
- Lane v The Queen [2018] HCA 28