Appellant Disputes Questions by Crown Prosecutor in Cross-Examination
Hofer v The Queen [2021] HCA 36 (10 November 2021)
The appellant was convicted of sexual offences against two complainants. The appellant's evidence was contradicted by the complainants' testimonies. The parties dispute whether the prosecutor's questioning was impermissible and prejudicial such that it resulted in miscarriage of justice. The Court, in adjudicating this case, assessed s 6(1) of the Criminal Appeal Act.
Facts:
The appellant was convicted of eight counts of having sexual intercourse with another person knowing that the other person does not consent. Two sets of allegations made by two young women involved 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. By the time the appellant took each of them to view the room, C1 and C2 were intoxicated, having drunk alcohol to excess at the insistence of the appellant.
The appellant gave evidence that he believed that each complainant consented. However, it became apparent that certain of his evidence which was inconsistent with or contradicted that of C1 and C2 had not been put to them by defence counsel for comment. The prosecutor put to the appellant that two aspects of his evidence which had not been put to C1 or C2 were, in effect, of recent invention. Defence counsel did not pursue objections to these suggestions of recent invention and the trial judge did not give the jury directions as to the use which could be made of this evidence.
The appellant denied that penile‑vaginal intercourse took place. He said that at no point did C1 say the words "stop" or "no" and that she gave no indication that she did not want the acts to occur. The appellant said that C2 initiated penile‑vaginal intercourse which was interrupted by a call on her mobile phone which she took. At some points in the course of his cross‑examination, the appellant was required by the Crown prosecutor to acknowledge certain matters, of which he had given evidence in chief during their cross-examination by defence counsel.
In discussing the appellant's evidence, the prosecutor drew to the attention of the jury two of the matters referred to above: the appellant's evidence that C1 may have had an orgasm and his evidence that C2 told him that she was bisexual. He pointed out to the jury that these matters had not been put to C1 or C2 for their comment. In the case of the latter evidence, he suggested that the jury would accept C2's evidence that she told him that she was a lesbian. No directions were given as to what the jury was to make of the evidence or what, if any, inferences were to be drawn.
Issues:
I. Whether or not the questions asked by the Crown prosecutor in cross‑examination of the appellant were impermissible and prejudicial such that they resulted in a miscarriage of justice
II. Whether or not the trial miscarried on account of the incompetence of the appellant's counsel.
Applicable law:
Criminal Appeal Act 1912 (NSW), s 6(1) - provides that miscarriage of justice includes any departure from a trial according to law to the prejudice of the accused.
Evidence Act 1995(NSW) s 106 - provides that where cross-examination has the sole purpose of impugning the credit of the accused it will be necessary for leave to be sought from the trial judge.
Browne v Dunn (1893) 6 R 67 at 70-71 - provided as a rule that where it is intended that the evidence of the 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.
MWJ v The Queen [2005] HCA 74; (2005) 80 ALJR 329 at 333 - noted that in many jurisdictions the rule has been held to apply in the administration of criminal justice.
X7 v Australian Crime Commission[2013] HCA 29 - provides that criminal proceedings are also accusatorial in nature, which requires that the Crown prove its case and cannot require an accused to assist in doing so.
R v Birks (1990) 19 NSWLR 677 at 688 - observed that it is one thing for the cross‑examiner to point to the unfairness to a witness who has not had the opportunity to comment, it is quite another to suggest that the result of a failure to observe the rule of practice is that a person should not be believed.
Hofer v The Queen [2019] NSWCCA 244 at [110] - Fagan J considered that the questioning had been limited, inconclusive and ineffectual and was not followed by an invitation to infer fabrication.
Weiss v The Queen [2005] HCA 81 - held that even where the appellate court is satisfied of the appellant's guilt beyond reasonable doubt, there may have been a "significant denial of procedural fairness at trial" which makes it "proper to allow the appeal and order a new trial".
Mraz v The Queen[1955] HCA 59 - accords with the long tradition of criminal law that a person is entitled to a trial where rules of procedure and evidence are strictly followed.
Kalbasi v Western Australia[2018] HCA 7 - explained that "the appellate court is not predicting the outcome of a hypothetical error‑free trial, but is deciding whether, notwithstanding error, guilt was proved to the criminal standard on the admissible evidence at the trial that was had".
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at 586 [71] - where 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.
Picker v The Queen[2002] NSWCCA 78 at [41] - where the defence was that the complainant initiated sexual intercourse, but defence counsel had left out some of the accused's instructions.
R v Manunta [1989] SASC 1628 - King CJ observed that an examination of an accused person which proceeds by reference to their being but one reason why a matter has not been put to a witness is "fraught with peril".
Weiss v The Queen [2005] HCA 81 - observed that even where the appellate court is satisfied of the appellant's guilt beyond reasonable doubt, there may have been a "significant denial of procedural fairness at trial" which makes it "proper to allow the appeal and order a new trial".
Castle v The Queen [2016] HCA 46 - Kiefel, Bell, Keane and Nettle JJ distinguished between a case which turns on the jury's preference for the evidence of one witness over another witness and a case, like the present, where it is apparent to an appellate court that the evidence of a witness is glaringly improbable.
Douglass v The Queen [2012] HCA 34 - where it was necessary for the jury, as it was for the Court of Criminal Appeal, to consider whether the appellant's evidence might "reasonably possibly" be true.
Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 - provides that where there has been a failure to leave a defence or partial defence for the jury's consideration, the appellate court will be prevented from being able to assess whether guilt was proved to the criminal standard.
Nudd v The Queen [2006] HCA 9 - Gleeson CJ acknowledged that there may be cases where counsel's "ineptitude is so extreme as to constitute a denial of due process to the client".
Analysis:
The questions asked by the Crown prosecutor as to matters which had not been put to C1 or C2 for comment are to be understood by reference to the general rule of practice regarding the cross‑examination of witnesses of an opposing party. As stated in Browne v Dunn, where it is intended that the evidence of the 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. Adherence to the rule may also be necessary to permit an assessment on the part of the tribunal of fact of differences or inconsistencies in the accounts given and of the credit of witnesses where that is an issue.
A miscarriage of justice to which s 6(1) of the Criminal Appeal Act refers includes any departure from a trial according to law to the prejudice of the accused due to the long tradition of criminal law that a person is entitled to a trial where rules of procedure and evidence are strictly followed. The questioning undertaken by the prosecution of the appellant departed from the standards of a trial to which an accused is entitled as the questioning implied that the appellant was obliged to provide an explanation as to why matters had not been put to C1 or C2, suggesting that he possessed information which he had not given counsel by way of instructions. 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 conclusion from the written record that the appellant was guilty beyond reasonable doubt of the offences on which the jury returned its verdicts of guilt is not open in this case because it could be reached only by assessing the whole of the admissible evidence at trial. It is not enough to say that the appellant's evidence as a whole was "glaringly improbable", such is a conclusion that treats the appellant's credibility as an undifferentiated whole when the inquiry must be about individual, separate counts and about the elements of each count. It seeks to proceed from a proposition that the appellant intended to have sex to the conclusion that the appellant intended to have sex regardless of consent and then to the conclusion that he committed all of the acts alleged against him. That conclusion depends upon treating nothing the appellant said in evidence that was inconsistent with his guilt as capable of raising a reasonable doubt about his guilt.
Conclusion:
The Crown's submissions in relation to the application of the proviso should be accepted. The appellant's conviction did not involve a substantial miscarriage of justice within the meaning of the proviso. The Court of Criminal Appeal was right to dismiss the appeal. The appeal to this Court should be dismissed.
