Hofer v The Queen [2021] HCA 36 (10 November 2021) (Kiefel CJ, Gageler, Keane, Gordon and Gleeson JJ)


Catchwords:


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”.