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Hofer v R [2019] NSWCCA 244 (18 October 2019)

Last Updated: 18 October 2019

Case Name:	Hofer v R
Medium Neutral Citation:	[2019] NSWCCA 244
Hearing Date(s):	30 August 2019
Date of Orders:	18 October 2019
Decision Date:	18 October 2019
Before:	Macfarlan JA at [1]; Fullerton J at [101]; Fagan J at [119]
Decision:	(1) Grant the applicant leave to appeal, to the extent necessary. (2) Grant the applicant all necessary extensions of time. (3) Appeal dismissed.
Catchwords:	CRIMINAL PROCEDURE – trial – whether prosecutor impermissibly cross-examined accused about parts of the accused’s evidence not having been put to the relevant complainant in cross-examination – by majority held that prosecutor’s questions were not prejudicial to accused – appeal dismissed MENTAL HEALTH – criminal proceedings – fitness to be tried – whether there was a miscarriage of justice by reason of an unresolved question as to the accused’s fitness to be tried at the time of his trial
Legislation Cited:	Crimes Act 1900 (NSW), s 61I Criminal Appeal Act 1912 (NSW), s 6(1) Mental Health (Forensic Provisions) Act 1900 (NSW)
Cases Cited:	Abdallah v The Queen [2001] NSWCCA 506; 127 A Crim R 46 Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59 Browne v Dunn (1893) 6 R 67 Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46 Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517 Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086 Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 Kalbasi v Western Australia [2018] HCA 7; (2018) 92 ALJR 305 Kesavarajah v The Queen (1994) 181 CLR 230; [1994] HCA 41 King v The Queen (2012) 245 CLR 588; [2012] HCA 24 Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689 Llewellyn v R [2011] NSWCCA 66 Lysle v R [2012] NSWCCA 20 MWJ v The Queen [2005] HCA 74 Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 OKS v Western Australia  [2019] HCA 10 ; (2019) 93 ALJR 438 Picker v R [2002] NSWCCA 78 Picker v The Queen [2002] NSWCCA 78 R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385 R v Dennis [1999] NSWCCA 23 R v Orchard [2013] NSWCCA 342 R v Presser [1958] VicRp 9; [1958] VR 45 R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 28 R v Taylor (1992) 77 CCC (3d) 551 RWB v R [2010] NSWCCA 147 TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81
Texts Cited:	JD Heydon, Cross on Evidence, (11th ed 2017, LexisNexis)
Category:	Principal judgment
Parties:	Thomas Hofer (Applicant) Regina (Respondent)
Representation:	Counsel: S Buchen SC / M Burke (Applicant) B Hatfield (Respondent) Solicitors: Blair Criminal Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2014/322117
Decision under appeal:
Court or Tribunal:	District Court of New South Wales
Jurisdiction:	Criminal
Date of Decision:	29 September 2019
Before:	Whitford SC DCJ
File Number(s):	2014/322117

JUDGMENT

1. MACFARLAN JA: On 19 April 2016 the applicant was arraigned on 11 counts of having sexual intercourse without consent contrary to s 61I of the Crimes Act 1900 (NSW). He pleaded not guilty to each count and his trial proceeded until 10 May 2016 when he was found guilty on Counts 2, 3, 4, 5, 6, 7, 9 and 11 and not guilty on Counts 1 and 8. The trial judge had earlier directed the jury to enter a verdict of not guilty on Count 10.
2. Counts 1 to 8 concerned eight different acts of sexual intercourse that were alleged to have been engaged in by the applicant with the complainant C1 on the evening of 29 October 2014 or in the early hours of 30 October 2014. Counts 9, 10 and 11 concerned three different acts of sexual intercourse that were alleged to have been engaged in by the applicant with the complainant C2 on the evening of 30 October 2014.
3. On 23 September 2016 the applicant was sentenced to an overall period of imprisonment of 9 years 9 months, with a non-parole period of 6 years 6 months to date from 31 October 2014. The applicant is thus eligible for parole on 30 April 2021.
4. The applicant appeals, and to the extent necessary seeks leave to appeal, against his sentence on the following grounds:

“Ground 1: There was a miscarriage of justice by reason of an unresolved question as to the applicant’s fitness to be tried at the time of his trial.
Ground 2: The trial miscarried as a result of the Crown prosecutor asking impermissible questions and making improper comments when cross-examining the applicant.
Ground 3: The trial miscarried on account of the incompetence of the applicant’s counsel.”

5. Ground 1 concerns the applicant’s fitness to be tried at the time of his trial. As that issue has been raised for the first time on appeal, the manner in which he gave evidence and instructed his legal representatives at the trial is of importance to its determination. In those circumstances, it is appropriate to defer dealing with it until after the evidence at the trial has been described and Ground 2 has been addressed.

THE EVIDENCE AT THE TRIAL

The first complainant’s evidence (C1)

6. C1 gave evidence that she was 23 years of age at the time of the alleged offences, was an American citizen and had recently arrived in Australia for a working holiday. She had booked accommodation at a hostel for one week but wished to find cheaper accommodation. As a result, she responded to an online advertisement that was placed by the applicant seeking someone, preferably a female aged 21 to 35, to share his one bedroom apartment. After exchanging messages, the applicant picked C1 up from her hostel in a taxi. They went to a bar where they consumed alcoholic drinks. The applicant encouraged her to drink more than she would have wished. They then went to another bar (the Little Guy Bar) where the applicant encouraged C1 to drink more, to the point where C1 described herself as “feeling quite intoxicated”. C1 said she “was feeling uncomfortable with [the applicant] because he would do things like touch [her] arm or [her] knee” and she “just had a weird feeling about him”. She sent a text message to a friend at the hostel saying “I feel weird with this guy, I want to come back to the hostel”. Nevertheless after being at the bar for approximately an hour they walked to the applicant’s apartment so that she could see what had been advertised.
7. At the apartment, C1 told the applicant that she did not want to have sex and repeated that later. C1 then gave detailed evidence of the various acts of sexual intercourse charged in Counts 1 to 8 that occurred. Counts 1 and 8 on which the jury returned not guilty verdicts related, on C1’s evidence, to the applicant putting his finger in her anus and an act of penile/vaginal intercourse respectively. C1 said she was “quite intoxicated” at the time that the latter act occurred and was “in and out of consciousness”.
8. When C1 realised that the applicant had not used a condom a discussion occurred between them as to the applicant having had chlamydia in the past. C1 then immediately dressed and left the apartment, with the applicant following and hailing her a taxi.
9. In the taxi she said that she was crying a lot and that she told the driver that the applicant had made her have sex with him. On her return to the hostel, she told the hostel manager that she had been raped. The next morning C1 told two police officers who came to the hostel that she had been raped. They advised her to go to the local hospital and to make a formal complaint, which she did.
10. The applicant’s counsel cross-examined C1 vigorously and at length, principally to the effect that by her conduct C1 encouraged the applicant to believe that she would and did consent to the sexual activity.

Other Crown witnesses concerning C1

11. A barman working on the night of 29 October 2014 at the second bar to which C1 and the applicant went gave evidence that the applicant had tried to kiss C1 and she had said “not here, or no or reacted in a negative manner ... ”.
12. The taxi driver who picked up C1 at the end of the evening gave evidence that when he approached in his taxi a male (the applicant) was grabbing C1’s wrist and she was trying to get away. He said that when in the taxi C1 said that the man had taken advantage of her and that “he wanted to do something like adult thing” [sic]. The taxi driver also gave evidence that C1 was “upset and crying”. He asked, “[w]hy are you upset?” C1 responded that the “man was not nice and [was] offering me cheap accommodation”.
13. The hostel manager gave evidence that when C1 returned to the hostel she was upset, started crying, fell to her knees on the staircase, and said “I think I just got raped”.
14. A senior constable who happened to be at the hostel on the morning of 30 October 2014 gave evidence that the hostel manager said to him that a girl, C1, was “crying and very distressed” and “said she was raped and collapsed”. The constable asked the manager if she could go upstairs and ask the girl to come down as he wanted to speak to her about what had occurred. C1 described to the constable her visit with the applicant to his apartment and that he had said “let’s have sex”, to which she said “no”. She told the constable that “[t]his guy forced me”.

The second complainant’s evidence

15. C2 gave evidence that in October 2014 she was 17 years of age, had recently moved from Queensland to Sydney and had stayed with friends and at a refuge. She responded to the same online advertisement as that to which C1 responded. The applicant informed C2 that the apartment was vacant and that he wanted to meet C2 for dinner and then show her the apartment.
16. C2 said the following exchange occurred over dinner:

“[The applicant] asked me if I had a boyfriend or something but I told him I was a lesbian because I remember feeling like yeah he told me I have a nice smile that’s what he said and he said that when you smile like that it makes me want to kiss you and then I told him I’m a lesbian, straight away, I just said, ‘Oh I’m a lesbian, sorry, too bad.’”

17. After dinner they went to a hotel and started drinking. When the applicant asked about her relationships, she again told him she was a lesbian to indicate that she was not interested in him sexually. The applicant asked to see a photo of her partner and C2 showed him a photo of her and her best friend.
18. After C2 consumed around three schooner glasses of cider she felt “pretty tipsy”. She and the applicant then went to the Little Guy Bar, where the applicant had taken C1 the previous night. The applicant encouraged her to drink more and whilst they were dancing C2 said that “he just grabbed my body really tight and he pushed his penis into my backside and it was really like forceful and I just kind of froze”. When C2 went outside for a cigarette she said that she was so drunk that she could not hold the cigarette in her lips.
19. They then walked to the applicant’s apartment. C2 said that she was unable to walk properly because she was so intoxicated and that she had never been that drunk before.
20. In the apartment C2 told the applicant that she did not want to have sex with him but he proceeded to do so. C2 then gave evidence of the penile/vaginal acts the subject of Counts 9 and 11. At one point she sent a friend an SMS saying “help me” and then either made or received a phone call from the friend. When the applicant complained about her talking on the phone she got dressed and started walking out of the house. The applicant walked with her to the bus stop and when the bus came, according to C2:

“[H]e told me to kiss him and I was just, like, ‘What ?’ and he said, ‘Kiss me, it’s a goodbye kiss’. And then he kissed me and I just stood there like just looking at him and then I got on the bus and as soon as the door closed and the bus drove I started screaming and crying and yelling and I just lost it.”

21. C2 got off the bus at Town Hall and immediately “fell to the floor”. She started to scream and was approached by a man. C2 handed the man her phone, which was still connected to her friend.
22. After her friend arrived to find her on the ground, he ran to the police station and came back with a police woman. C2 told the police woman that the applicant had raped her.
23. C2 was then cross-examined at length by the applicant’s counsel. The cross-examination was principally to the effect that C2’s conduct was such that the applicant could reasonably have understood that C2 would and did consent to the sexual activity that occurred.
24. As C2 did not give evidence of the act charged in Count 10 in the Indictment, the trial judge directed the jury to return a verdict of acquittal on that charge.

Other Crown witnesses concerning C2

25. Mr McBride, a barman at the Little Guy Bar, gave evidence of the applicant and C2’s presence at the bar on the night of 30 October 2014. He said that “[i]t seemed like [the applicant] wanted to talk to [C2] himself and he didn’t really want her talking to other people ... ”. In cross-examination he agreed that C2 seemed very excited to be at the bar and that neither she nor the applicant appeared drunk.
26. A female to whom C2 had spoken at the Little Guy Bar and who was referred to in the evidence as the Irish girl gave evidence that C2 was intoxicated and that the applicant was very possessive of her. She stated that C2 had told her that she was a lesbian and that she “heard her exclaiming that point again to other people in the bar later”. She gave evidence that upon C2 and a male (the applicant) leaving the bar, C2 grabbed her hand. The applicant however put his hand around C2’s waist, pulled C2 towards him and with his other hand prised her fingers off C2’s hand.
27. A female friend of C2 gave evidence of a complaint by C2 to her on the evening of 30 October 2014, as did a male friend of C2. This friend spoke to C2 on the phone when she was on the bus after leaving the applicant. He said that he later found C2 on the footpath crying, screaming and yelling “get him off me” and that she said “he raped me”. Another man, who was with him that evening, also gave complaint evidence.
28. As well, two police officers gave evidence of the complaints by C2 to them of sexual assault of her by the applicant. These complaints were made late on 30 October or early on 31 October 2014.

Crown evidence relevant to both complainants

29. The investigating police officer gave evidence of the arrest of the applicant and that he asserted that his interactions with the complainants were consensual. He also gave evidence of obtaining CCTV footage from the two bars and the hotel to which the applicant had taken C1 or C2, and of obtaining mobile telephone records and records of Facebook communications.
30. The Crown also called evidence of medical examinations of C1 and C2, DNA evidence obtained from C1 and C2 and pharmacological evidence.

The case for the applicant – the applicant’s evidence

31. The applicant gave evidence that in October 2014 he occupied a single room at premises in Glebe and that he had advertised online for a person to share it with him. He gave detailed evidence of his interactions with the complainants, both at the bars, hotel and at his apartment. The effect of his evidence was that considerable sexual activity had occurred with the complainants, largely as alleged, but that they consented to all of it.
32. The Crown Prosecutor’s cross-examination of the applicant included the following exchanges which are the subject of Ground 2 of appeal:

489

“Q. As far as you were concerned she did not want you to perform oral sex on her, correct?
A. To me it was very clear that she did want me and it was fully consensual.
Q. Mr Hofer you gave evidence yesterday that you think [C1] might have had an orgasm, is that what you said?
A. That’s correct.
Q. Did you hear that put to [C1] in cross-examination?
A. I can’t recall big fat details of the question that was put to her or the answer that was put to her.
Q. Did you hear it suggested to [C1] that she might have had an orgasm?
A. I can’t--
[TRIAL COUNSEL]: I object, the question is not relevant.
CROWN PROSECUTOR: I don’t propose to take it any further, but I think that question--
HIS HONOUR: You have asked the question, an answer has been given to it.
...
498
Q. I will put it this way Mr Hofer, she wasn’t interested in dancing with you was she?
A. I would disagree with that, she was rubbing herself up against me even when I was sitting down on the bar stool.
Q. She told you she was a lesbian, didn’t she?
OBJECTION RELEVANCE
WITNESS: She told me that she was bisexual. There’s a big difference between being a lesbian and being bisexual.
CROWN PROSECUTOR
Q. Did she or did she not tell you that she was a lesbian?
A. No she did not tell me that.
Q. She said that she was bisexual is that what you this jury [sic]?
A. That is correct.
Q. Did you hear that put to [C2] at any stage in this trial?
A. I don’t believe it has been put to her actually, it was put to her that she stated that she was a lesbian and she also stated that the guy testified, the African guy, that they had been together sexually, although she did not use the word sexually.
Q. Mr Hofer that was nothing more than a free kick taken by you to try to damage [C2] wasn’t it?
A. Can you rephrase the question?
Q. That little nugget that you threw in at the end there about the African guy and [C2] that was nothing more than an attempt to damage her wasn’t it?
A. Of course not.
Q. Was it relevant to the question I asked your [sic] Mr Hofer?
A. Could you repeat the question please?
Q. Did she, or did she not, tell you that she was a lesbian?
A. No she did not.
499
Q. Did you hear it ever put to [C2] during the trial that she said to you that she was bisexual?
A. I don’t believe that has been put to her during the trial.
Q. No not once. She told you she was a lesbian didn’t she?
A. No she did not say she was a lesbian.
...
Q. It was clear to you I want to suggest pretty quickly that what she was interested in doing was dancing to the band?
A. And kissing me and putting her tongue in my mouth.
Q. Did you hear it put to [C2] at any stage of this trial that she put her tongue in your mouth?
A. No it has not been put to her.
Q. No. Not once. In relation to that kiss Mr Hofer, I want to suggest to you that what in fact happened, the first kiss that I think is about seven seconds duration, is that you grab [C2] and draw her towards you?
A. That, anything be correct.”
...
Q. What if she wanted to stay there without you?
A. That would have been okay as well.
Q. That would have been okay?
A. Yes.
Q. You wouldn’t have felt angry?
A. I might have felt disappointed.
Q. Jealous?
A. May be slightly if there had been a guy involved, but there wasn’t.
Q. Because an 18 year old woman who told you [that she] was a lesbian, decided not to go home with you?
A. I told you before she did not tell me that she was a lesbian, she told the Irish girl according to the Irish girl’s evidence who testified here that she was a lesbian. It may have been that the Irish girl was a lesbian.
Q. Mr Hofer one more time, you never heard it put to [C2] did you at any stage that she hadn’t told you she was a lesbian not once?
503
A. Sh did not tell me at any stage she was a lesbian, and may be my barrister should have cross-examined her better.
...
504
Q. And you put that big frame of yours directly between [C2] and [the Irish girl] didn’t you, is that not what you did?
A. You could say that.
Q. Okay, I will. Sir, [C2] showed no sign, I want to suggest to you, apart from a kiss or kisses that you instigated much earlier in the night, she gave no sign of having any sexual interest in you, did she?
A. I would consider that the kiss where she put her tongue in my mouth was
quite sexual.
505
Q. This is the kiss, the tongue kiss that was never, not once, put to [C2] for her to have the opportunity to comment on, correct?
A. Correct.”

33. After the weekend adjournment, the applicant’s cross-examination on Monday 3 May 2016 included the following:

518
“Q. Mr Hofer, you gave evidence that after [C2] received or made this phone call, you said something to her along the lines of, you talking to some guy does not make me hard, and you then asked her if she would like to perform oral sex on you. Do you remember giving that evidence?
A. It was words similar to that, that is correct.
Q. You told the jury that [C2] agreed, and in fact performed oral sex on you?
A. Yeah, she appeared to be quite experienced about doing it too.
Q. Mr Hofer, that last little comment was again nothing more than a free kick by you to try to denigrate [C2], wasn’t it?
A. There’s nothing denigrating about that, it’s the fact - or as I perceived it.
Q. Can I put this to you, sir. You didn’t hear at any stage during [C2’s] evidence a suggestion put to [C2] that she performed oral sex on you, did you?
A. And have - for previously my barrister may have been I won’t say neglectful but we only had the - I only had the opportunity to brief my barrister on two occasions, one was for about half an hour, the second occasion was again for may be half an hour to an hour, where I’m sure you had much more time than one and a half hours to prepare.
Q. You didn’t hear it put to [C2] at any point, did you?
A. No, that is not correct. I asked her the question.
Q. You asked her a question? I’m talking about when [C2] was in the witness box.
A. No, the answer it was not put to [C2]--
Q. The question was never put to her, was it?
A. (No verbal reply)
Q. She was never given an opportunity to comment on this suggestion you make now that she agreed to perform oral sex on you. That was never put to her for her comment, was it?
A. Correct.
Q. You went on to say in your evidence in-chief that, “By the time my penis was erect, I asked her if she would like to do doggy style and she said yes, and she hopped into the doggy style position on the bed.” Then you have penile vaginal intercourse with her there. Do you remember giving that evidence?
A. Yes, I do, and—
519
Q. You were asked what happened then, and you said, I said something to her. You were asked, what did you say? You said, I asked her if she was on the pill and if it was okay for me to come inside her and she said yes. Do you remember giving that evidence?
A. Yes, I do.
Q. When you said, come inside her, did you mean ejaculate inside her?
A. Correct.
Q. And is that what you did?
A. I believe we both had an orgasm, I most certainly did.
Q. We’ll come to that in a moment. Is that what you did? Did you ejaculate inside her?
A. Yes.
Q. Did you ever hear at any stage of the cross-examination of [C2] a suggestion that you said to her, is it okay for me to come inside of you, and she said yes?
A. That was not put to her by my barrister and again it should have been, and in front of my barrister is notes that I wrote on--
HIS HONOUR
Q. The question you were asked was did you ever hear a suggestion in the [course] of [C2’s] evidence that something occurred, the answer presumably is yes or no, it’s not calling for some volunteering of additional information.
A. Okay, just a yes or no answer. The answer is no.
CROWN PROSECUTOR
Q. No, you didn’t hear that?
A. Correct.
Q. And the suggestion that you just mentioned again you believe we both had an orgasm, did you ever hear that suggestion put to [C2] for her comment?
A. No.
Q. [Trial counsel] has just pointed out to me that some of my earlier questions were unfair to you or unfair to - in any event, that in fact [trial counsel] did put to [C2] that she performed oral sex on you, so I apologise for that. But you didn’t hear any suggestion put to [C2] for her comment that she agreed that you could come inside of her, no?
A. I believe that’s already been answered.
Q. And you never heard any suggestion put to her that she had an orgasm, correct?
A. Correct.
...
520
Q. Were you essentially making your evidence up as you went along, Mr Hofer?
A. No, that’s not correct.
Q. Mr Hofer, what in fact happened, I want to suggest to you, is that you went up to your room with [C2] and pretty much immediately you said to her, let’s do it, or words to that effect?
A. Those - the words in [C2’s] statement are not words that I would use with any woman.
Q. To what part of that did you object, what part of that quote? Why wouldn’t you use words like that?
A. Can you read the full phrase from--
Q. [C2] says that you got inside the room and you said words to the effect of, okay, let’s do it.
A. I don’t use the words, let’s do it. It’s like ..(not transcribable).. - almost like ..(not transcribable).. phrase, it’s not part of my normal, natural language. May be people that they - police have previously prosecuted might use that language. Well, I’m suggesting--
Q. Do you consider it coarse, do you?
A. No. What my suggestion is, and I’m not talking about the gentleman from the Police Force who’s in the Court at the moment, but I believe there was substantial coaching by the police officer involved with [C2’s] statement and with [C1’s] statement.
Q. Okay. Mr Hofer, did you hear put at any time in this trial a suggestion to the officer in charge that he had coached either [C2] or [C1]? Did you hear that or not?
A. Can I ask if this gentleman is the officer in charge? Because someone else told me that they were the officer in charge.
HIS HONOUR
Q. You are simply being asked whether you hear something in court or not, Mr Hofer. Please listen carefully to the questions and do your best to answer the question you’re being asked, not some other question.
A. Could you repeat that?
CROWN PROSECUTOR
Q. You’ve told the jury that you think that there was coaching of [C1] and [C2], is that right?
A. Correct.
Q. And you say that was done by police officers?
A. Correct.
Q. Did you hear a single question put to any police officer in this trial that they had coached either [C2] or [C1]?
521
A. The police officers that were involved in the statements have not been present in court.
Q. Mr Hofer, you know that it was open to you to insist on the presence in the witness box of any police officer who was involved in this investigation, right, and you didn’t require any police officer to get into the witness box and answer allegations that they’d coached witnesses, did you?
A. I have had discussions with my legal team and they suggested--
Q. Don’t tell us what you discussed with you legal team, Mr Hofer. Will you address that question?
A. Can you repeat the question, please?
Q. You have had the brief of evidence, that is the entire evidence available to the Crown in this matter,--
A. Yes.
Q. --and it was served on you a long time ago, right?
A. Correct.
Q. You were aware at all times of the identity of every single police officer who was involved in this investigation, right?
A. Yes.
Q. It was open to you to require the Crown to get any police officer here for cross-examination that you required, right? You understood that, didn’t you?
A. Yes I do.
Q. You did not ask for a single police officer to come here and answer these allegations you are now making that they coached either [C2] or [C1] did you?
A. I did say that to my legal team and they thought it best not to and I’m reserving my right to take the New South Wales police force on in the Supreme Court.
Q. So, not a single question was put to either the officer, the second in charge, Detective Sergeant Franklin, to the effect that he had ever coached either [C1] or [C2] right?
A. He was above the officer in charge and I found him to be of good character when he arrested me.
Q. You didn’t hear a single question put to either [C2] or [C1] that they had been coached by any police officers?
A. No but they give evidence that suggests that they have been change - statements.
Q. Mr Hofer did you hear a single question at any stage in this trial put to any witness that there had been coaching of [C2] or [C1]?
A. No.”
...
523
Q. Did you ask [C2] if she wanted you to walk with her out of the house onto Bridge Road?
A. That was not one of the questions I asked her while we were talking on the bed.
Q. She got dressed and she left and you could see, couldn’t you, how upset she was even by that stage?
A. At that time she was not upset whatsoever and you will recall from the CCTV on the bus that she was smiling as she hopped on the bus.
Q. That’s so Mr Hofer but 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?
A. Around five to ten minutes after the bus turned - pulled away at which time she had been speaking with the person who was her non official boyfriend who had heard her breathing very heavily whilst we were having consensual sex.
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 it, 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?
A. I believe some things that I have stated can be proven.
Q. Not once did anybody put to [C2] this suggestion that she was on the phone to her - what did you call him, unofficial boyfriend?
A. Well--
Q. Can you answer that question, did you hear it put or not?
A. From her own words--
Q. Mr Hofer. I am sorry Mr Hofer, did you hear it put or not?
A. From her own words she stated that he was not her official boyfriend but she was indicating that there had been an effectual relationship, so it did not need to be - that did not need to be put to her by my barrister.
Q. Mr Hofer, not once was that put to [C2] for her comment.
A. A person’s sexual history cannot be asked of them in court.
Q. The fact is this, you saw the footage of - it was you who raised [C2] smiling and waving to you when she got onto the bus, correct?
A. Correct.
Q. And you also saw didn’t you [C2] on the bus from Glebe into Town Hall correct?
A. Yes I did.
Q. Would you agree that she was hysterical?
A. I would agree that she was quite distressed and hysterical.
Q. Would you agree that she appears to be raising her voice and crying inconsolably?
A. I don’t know about raising her voice, but she was definitely crying.
Q. Inconsolably, would you agree with that characterisation?
A. Well she was pulling at her top.
Q. She was, wasn’t she? You could see her quite clearly pulling at her clothing?
A. Yeah, I don’t know if that was from her sexual - sorry. She was pulling at her clothing. Previously she had made a statement to the police that--
HIS HONOUR
525
Q. Is this responding to some question you have been asked, Mr Hofer? If so, which question was that?
Q. Okay. Could you please ask the question again.
CROWN PROSECUTOR
Q. [C2] is crying inconsolably, raising her voice, speaking on the phone and she can be seen pulling at her clothing, can’t she?
A. Yes.
Q. Exactly as Constable Wallace said she was doing later that night, right?
A. Yes, I don’t know if it was an act or if it was genuine.
Q. Well if it was an act, Mr Hofer, it’s quite a performance, isn’t it?
A. Well she did study at a performing arts school and I believe she can put on a very good act if she wishes to.”

DETERMINATION OF APPEAL GROUND 2 – WHETHER IMPERMISSIBLE CROSS-EXAMINATION OF THE APPLICANT

34. The gravamen of the applicant’s complaint in relation to this ground of appeal is that in his cross-examination of the applicant the Crown Prosecutor impermissibly suggested, expressly and impliedly, that the applicant was lying in his evidence about eight identified matters because his counsel had not put those matters to the relevant complainant (or in relation to the eighth matter, to the police) in cross-examination. The relevant evidence given by the applicant was to the following effect:
    • (1) C1 had an orgasm during oral sex performed by the applicant on her (T489-90).
    • (2) C2 told him that she was bisexual and did not tell him that she was a lesbian (T498-9, 502-3).
    • (3) C2 had used her tongue when she and the applicant kissed (T499, 504-5).
    • (4) C2 performed oral sex on the applicant (T518).
    • (5) The applicant asked C2 if he could ejaculate inside of her (T519).
    • (6) The applicant and C2 both had an orgasm during sexual intercourse (T519).
    • (7) Whilst the applicant was having sexual intercourse with C2, she was on the phone to her “unofficial boyfriend” (T523-4).
    • (8) The complainants had been coached by police (T520-1).
35. It was correct that none of the eight matters were put to C1 or C2 (or in the case of the eighth, to police) save for the fourth matter which the prosecutor realised during his cross-examination of the applicant was in fact put to C2 (and he apologised to the jury for suggesting otherwise) and the seventh matter which arose out of a misunderstanding by the prosecutor of the evidence. C2 gave evidence of the seventh matter which substantially reflected that later given by the applicant. Of the eight matters the first, fourth, fifth and sixth were referred to by the applicant in his evidence-in-chief. He referred to the other matters only in cross-examination.
36. The absence of questions to the Crown’s witnesses on these topics was referred to in the Crown’s closing address only in a limited fashion as follows:

“The accused gave evidence of course. The accused told us that essentially
having met [C1] just a few hours earlier, once they got to his room he
offered to take her dress off, she agreed, and then after giving her a massage
he asked her if she wanted him to lick her and according to the accused she said yes, she would. The accused then told us that he used his fingers while performing oral sex on her, that wasn’t put to [C1] at any stage, and he also told us she might have had an orgasm, and that also is another detail that was never put to [C1] for her comment.
...
In that regard the accused gave evidence that what [C2] told him was
that she was bisexual. That was not a proposition, you might think, that was
ever put to [C2] for her comment and I want to submit to you that you
would accept [C2’s] evidence that she said to him that she was a lesbian ...”

It was not referred to in the trial judge’s summing-up.

37. Nevertheless, the applicant contends that the Crown’s questions to the applicant were impermissible and, at least in the absence of any attempt by the applicant’s counsel or the trial judge to lessen their impact, were both material and highly prejudicial to the applicant.
38. The applicant’s contentions derive support from the following authorities.
39. In R v Dennis [1999] NSWCCA 23, the Crown challenged evidence given by the accused by drawing the accused’s attention in cross-examination to the fact that his counsel had not put the proposition the subject of the evidence in cross-examination to the relevant crown witness. In closing, the Crown put to the jury that this indicated that “the accused was changing his version, even as he was giving evidence in the witness box it seems” (at [29]). McInerney J, with whom Spigelman CJ and Wood CJ at CL agreed, described the cross-examination as “very prejudicial” to the accused and the Crown’s address on this issue as “very highly prejudicial” (at [28] and [33]). In agreeing with McInerney J that the appellant’s conviction should accordingly be quashed, Spigelman CJ said at [46] that the “degree of prominence given to this issue is such as to undermine the requirements of a fair trial”.
40. In R v Abdallah [2001] NSWCCA 506; 127 A Crim R 46, there was a difference between the accused’s counsel’s opening statement to the jury and the accused’s later evidence. Sheller JA (with whom Dowd and Kirby JJ agreed) pointed out at [24] that in that situation and also where the accused’s counsel has failed to cross-examine the complainant on aspects of the defence case:

“ ... a question arises as to whether the conduct of counsel accords with the instructions given by the accused. And in both situations, the discrepancy between what is said or done by counsel for the accused, and the accused himself, may be due to one of several possibilities. The accused may have changed his story since giving instructions to counsel. Counsel may have misunderstood the instructions given to him, or the solicitor may not have correctly conveyed instructions to counsel. Counsel may simply have forgotten a particular part of the instructions, or become confused between the dates of the 8 and 11 January 1999. The point made in [R v Birks (1990) 19 NSWLR 677; 48 A Crim R 385] and [Manunta v R [1989] SASC 1628; (1989) 54 SASR 17] is that in such a situation, it is necessary for the trial Judge to draw the attention of the jury to other possible causes of such an inconsistency. Otherwise there is a real danger that the jury, lacking any detailed knowledge of the process of trial preparation, may assume that the cause of the inconsistency must be that the accused has changed his or her story.”

41. In Picker v The Queen [2002] NSWCCA 78, Smart AJ (with whom Beazley JA and Bell J agreed) at [41] described cross-examination similar to that undertaken in the present case, in which the accused was asked whether he had heard various propositions that he stated in evidence put to the complainant in cross-examination, as “impermissible and highly and unfairly prejudicial to the appellant’s case”. It was suggested by the Crown Prosecutor in that case that because the propositions had not been put to the complainant, the accused was making up his evidence. Whilst in his closing address the Crown Prosecutor asserted that the accused had fabricated his evidence, he did not expressly link that to the failure to put certain matters to the complainant in cross-examination.
42. Smart AJ concluded:

“46 In the present case the Crown Prosecutor in his final address described what the appellant told the jury as ‘the best fantasy novel ever written’ and his description of what happened when he sat down on the lounge with her as a flight of fantasy. The Crown Prosecutor caustically remarked that the appellant’s version of the subsequent events ‘gets better’. The prosecution described the appellant’s version as absurd and a flight of fantasy and urged the jury not to give the slightest shred of credibility to the appellant’s story. He suggested, ‘...you would find that the accused was telling you a total fabrication in relation to that.’ The address thus emphasised the fact of fabrication by the appellant and it covered the matters about which the appellant gave evidence and the complainant was not cross-examined.
...
48 No objection was taken at the hearing to the objectionable portions of the prosecutor’s cross-examination nor to the prosecutor’s florid address.
...
62 The damage done to the credit of the appellant by the impermissible cross-examination in the two areas earlier identified was probably considerable. The failure of the appellant’s counsel to put his instructions adequately to the complainant made matters worse. The cursory re-examination of the appellant did not repair the damage. The prosecutor’s florid address capitalised on the impermissible cross-examination. That address was delivered on the same morning as the summing-up. It is the combination of the established complaints which leads to the conclusion that there has been a miscarriage of justice. For the reasons just given this is not a case where this Court can be satisfied to the contrary.”

43. In R v Orchard [2013] NSWCCA 342, where aspects of the accused’s evidence had not been put to the relevant prosecution witness, the Court made the following observations:

“43 It has been accepted that there is a rule of professional practice, said to be based on the decision in Browne v Dunn (1893) 6 R 67, that, subject to various qualifications, a cross-examiner must put to a witness the matters in respect of which it is intended the witness's evidence will be contradicted (R v Birks (1990) 19 NSWLR 677 at 686D per Gleeson CJ, with whom McInerney J agreed). The continuing application of this rule to criminal trials has been doubted (MWJ v R [2005] HCA 74; 80 ALJR 329 at [40]), however its application was recently assumed by this Court in Lysle v R [2012] NSWCCA 20 at [40]. A potential consequence of a failure by counsel for the accused to put a matter to a prosecution witness about which the accused later testifies is that it can be a basis for the Crown to contend that that aspect of the accused's evidence is a recent invention (see Birks at 690 to 692 per Gleeson CJ; Llewellyn v R [2011] NSWCCA 66 at [137(c)] per Garling J; and Lysle at [35]; although compare Llewellyn at [138(d)] with Lysle at [41] to [45]). As there may be many reasons why a matter was not put to a witness, a process of reasoning that relies on that fact to allow for a finding adverse to an accused must be approached with caution (Llewellyn at [138(b)] per Garling J and cases cited thereat; and R v Giourtalis [2013] NSWCCA 216 at [45] per Bathurst CJ). If counsel for the accused is confronted with the suggestion that their client has recently invented some detail that was not put to a Crown witness, or that is put to an accused in cross-examination, and if the failure to put it was an oversight or mistake on counsel's part, then a number of responses are available (Birks at 683B). They include re-examining the accused on his or her instructions to counsel (Llewellyn at [58]), calling the instructing solicitor to testify as to the accused's instructions, or counsel returning their brief and giving evidence as to their instructions and acknowledging error on their part (Birks at 683C).
44 While that is not this case, and while it may be that in a particular circumstance Browne v Dunn has little or no place in drawing an inference adverse to an accused, a failure to comply with the rule may nevertheless have an effect on an accused's credit. It may also be relevant in circumstances where an allegation of counsel's incompetence is said to give rise to a miscarriage of justice.”

44. As made clear in these authorities, it is at least ordinarily impermissible to attack an accused’s evidence on the basis of a failure of his or her counsel to have put matters of which the accused gives evidence to the Crown witnesses in the course of their cross-examination. This is because there may be many reasons why counsel did not take that course. The absence of it being taken accordingly provides no sound basis for an inference that the accused is not telling the truth about those matters.
45. One reason why a reasonable counsel acting for the applicant in the present case might have considered that it would not advance his client’s interests to put some of the eight subject matters to C1 or C2, as appropriate, is that in large measure the applicant did not dispute that the sexual activity described by C1 and C2 occurred. Rather, his case was, contrary to C1 and C2’s evidence, that the activity was consensual. In these circumstances, counsel might reasonably have thought it unnecessary, and perhaps counterproductive, to descend in cross-examination of C1 and C2 to details of the sexual activity. For example, counsel may have thought that the applicant’s case would not be advanced by putting to C1 that she had an orgasm during sexual intercourse with the applicant as, although an acceptance of that may have assisted that case, the proposition would more likely have been rejected. Different explanations, such as counsel’s oversight, might apply in relation to the remaining matters.
46. The Crown’s impermissible questions were not merely incidental aspects of the applicant’s cross-examination. They occupied a substantial part of it and grew more frequent as the cross-examination drew to a close. Indeed, in my view, it is fair to say that these questions constituted the principal means of attack by the Crown on the applicant’s evidence.
47. The Crown’s cross-examination of the applicant occupied approximately 47 pages of transcript between pages numbered 471 and 525, eight pages having dealt with other matters. The Crown asked the applicant approximately 29 impermissible questions, spread throughout the cross-examination. Impermissible questions were asked on five of the last eight pages of the cross-examination. In the part of the cross-examination recorded on two of those pages almost at the end of the cross-examination (pp 520 and 524) the Crown put expressly to the applicant that the absence of his counsel making relevant suggestions to the Crown’s witnesses demonstrated that the applicant was fabricating his evidence. This was plainly the intended inference from the Crown’s other impermissible questions and was the message with which the Crown left the jury at the end of the cross-examination. That the impermissible line of questioning was, although referred to, not a feature of the Crown’s closing address did not in my view deprive it of significance as, in its address, the Crown continued to maintain that the applicant’s evidence was false. The manner in which the Crown attacked that evidence would have been fresh in the jury’s mind as the Crown’s closing address commenced immediately after its cross-examination of the applicant concluded.
48. Whether the prejudice to the applicant caused by the Crown’s impermissible questions in cross-examination could have been cured by appropriate directions to the jury by the trial judge need not be addressed. No such directions that, for example, identified other possible reasons why suggestions reflecting the applicant’s evidence had not been made to the Crown’s witnesses were sought by the applicant’s counsel nor given by the trial judge.
49. For these reasons, I conclude that the applicant’s interests were prejudiced to a significant extent by the Crown’s impermissible questions and by the absence of any attempt by the trial judge to attempt to cure that prejudice. There was therefore a “miscarriage of justice” within the meaning of s 6(1) of the Criminal Appeal Act 1912 (NSW). As indicated in Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81 at [18] “any departure from trial according to law, regardless of the nature or importance of that departure” is a “miscarriage of justice” for the purpose of provisions like s 6(1) of the Criminal Appeal Act (see also King v The Queen (2012) 245 CLR 588; [2012] HCA 24 at [53]).
50. That being the case, it is necessary to consider whether the applicant’s proposed appeal should nevertheless be dismissed in accordance with the “proviso” to s 6(1) because “no substantial miscarriage of justice has actually occurred”.

Whether the proviso is applicable

51. Decisions in recent years in which the High Court has considered the application of the proviso include Weiss; Baini v The Queen (2012) 246 CLR 469; [2012] HCA 59; Douglass v The Queen [2012] HCA 34; (2012) 86 ALJR 1086; Castle v The Queen (2016) 259 CLR 449; [2016] HCA 46; Collins v The Queen [2018] HCA 18; (2018) 92 ALJR 517; Lane v The Queen [2018] HCA 28; (2018) 92 ALJR 689; Kalbasi v Western Australia [2018] HCA 7; (2018) 92 ALJR 305 and OKS v Western Australia  [2019] HCA 10 ; (2019) 93 ALJR 438.
52. Principles of relevance to the application of the proviso in the present case that I derive from these authorities are as follows.
53. First, in applying the proviso, the “fundamental question” for the appellate court is to decide whether there has been a substantial miscarriage of justice (Kalbasi at [16]).
54. Secondly, it is a necessary but not sufficient condition for application of the proviso that the appellate court is persuaded that the evidence properly admitted at trial proved the accused’s guilt beyond reasonable doubt (Weiss at [44]; Baiada at [29]; Lane at [38]). Where an appellate court is so satisfied, this “will in many instances support the conclusion that there has been no substantial miscarriage of justice” (Kalbasi at [13]; see also Weiss at [44]; Baini at [30]). In some cases, it will not. Where the appellate court is not satisfied that the accused’s guilt has been proved beyond reasonable doubt on admissible evidence there “will always be a substantial miscarriage of justice” (Kalbasi at [13]).
55. Thirdly, for the purpose of determining whether there has been a substantial miscarriage of justice, the appellate court must undertake an independent assessment of the whole of the record of the trial (Weiss at [41] and [43]). That examination requires account to be taken of the jury’s guilty verdict (Weiss at [43]).
56. Fourthly, there are natural limitations on the appellate court’s ability to determine whether the accused’s guilt has been proved beyond reasonable doubt, particularly in cases in which the credit of witnesses is of importance because the appellate court has not seen and heard the witnesses give their evidence (Kalbasi at [15]; OKS at [31]; Weiss at [41]). Reliance by the appellate court on the jury’s guilty verdict may enable those limitations to be overcome (Baini at [32]). Such reliance avoids the appellate court impermissibly exercising the functions of the jury (Lane at [48]; R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]- [66]).
57. Fifthly the appellate court will not be able to rely on the jury verdict where the verdict may have been affected by errors in the trial process (OKS at [29]; Kalbasi at [15]; Lane at [48]; Collins at [36]). In some cases however an error will have been of no significance in determining the verdict returned by the jury (Weiss at [43]).
58. Sixthly, in an extreme case the appellate court may be able to rely, for the purpose of determining whether guilt has been proved beyond reasonable doubt, not on the verdict, but on its own conclusion that oral evidence contrary to the Crown’s case is obviously false (Castle at [66]).
59. I turn then to the present case. Even if the jury here accepted the complainants’ evidence, it still had to consider whether the applicant’s evidence might “reasonably possibly” be true, that is, that the applicant had believed that C1 and C2 consented to the sexual activity (even if they did not) (Douglass at [13]). In this sense a criminal trial is thus not a “word against word” contest between the complainant and the accused (Douglass at [12]).
60. In these circumstances it would be no answer to the applicant’s appeal to conclude that the complainants’ evidence was forceful and strongly supported by complaint evidence. Absent an impermissible usurpation of the jury’s function (or a conclusion that the applicant’s evidence was obviously false) this Court would have to rely upon the jury’s verdicts of guilty if it were to conclude that the applicant’s evidence was not reasonably possibly true, in the same way that it would have to rely on the guilty verdicts to hold that the complainants’ evidence ought to be accepted.
61. The jury’s verdicts cannot however be relied upon in this way because they were impugned by the Crown’s impermissible cross-examination and by the absence of any attempt by the judge or the applicant’s counsel to have the prejudice to the applicant which flowed from that cross-examination rectified.
62. For the reasons I have given earlier, it could not be said that the cross-examination could not have had any significance in the jury’s assessment of the applicant’s evidence (compare Weiss at [43]). Nor could it be said that the applicant’s evidence was obviously false as concluded in Castle at [66] in relation to the evidence of Mr Castle. In that case, the plurality in the High Court found it open to the Court of Criminal Appeal to conclude that Mr Castle’s evidence “was not just implausible and inconsistent with the objective evidence, it was ‘so obviously false that it carrie[d] no weight at all’” (Castle at [52] and [66]). The same cannot be said of the applicant’s evidence.
63. For these reasons, the proviso to s 6(1) of the Criminal Appeal Act is inapplicable. This is because I am not satisfied that the evidence properly admitted at trial proved the appliciant’s guilt beyond reasonable doubt. As this necessary condition of the application of the proviso has not been established, it is inapplicable. The applicant’s convictions must therefore be quashed by reason of the trial miscarrying for the reasons identified in ground 2.

DETERMINATION OF GROUND 1 – WHETHER THERE WAS A MISCARRIAGE OF JUSTICE BY REASON OF AN UNRESOLVED QUESTION AS TO THE APPLICANT’S FITNESS TO BE TRIED AT THE TIME OF HIS TRIAL

The relevant legal principles

64. The Mental Health (Forensic Provisions) Act 1990 (NSW) stipulates procedures to be followed when a question as to an accused’s fitness to be tried is raised before trial. If the accused is found to be unfit, following a non-adversarial hearing, he or she cannot be tried but must be referred to the Mental Health Review Tribunal for further assessment. These procedures were not however followed in the present case and the applicant’s fitness to be tried arises for consideration for the first time on this appeal.
65. In R v Presser [1958] VicRp 9; [1958] VR 45 at 48, Smith J described the “minimum standards which [an accused] needs to equal before he can be tried without unfairness or injustice to him” as follows:

“He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.”

66. In Kesavarajah v The Queen (1994) 181 CLR 230 at 245; [1994] HCA 41 the plurality summarised these minimum standards as requiring the ability:

“(1) to understand the nature of the charge; (2) to plead to the charge and to exercise the right of challenge; (3) to understand the nature of the proceedings, namely, that it is an inquiry as to whether the accused committed the offence charged; (4) to follow the course of the proceedings; (5) to understand the substantial effect of any evidence that may be given in support of the prosecution; and (6) to make a defence or answer the charge.”

67. In Eastman v The Queen (2000) 203 CLR 1; [2000] HCA 29 at [26] and [27], Gleeson CJ referred with approval to the following further propositions concerning an accused’s fitness for trial (citing R v Taylor (1992) 77 CCC (3d) 551 at 564-565):

“(a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject matter of the trial.
(b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.
(c) The fact that an accused person’s mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.
(d) The fact that a person’s mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.”

68. As to the position where the question of an accused’s fitness to stand trial is raised for the first time on appeal, Howie J (with the concurrence of Tobias JA and Shaw J) said in R v RTI (2003) 58 NSWLR 438; [2003] NSWCCA 283 at [31]:

“If there is material before this Court which raises a question about the propriety of the conviction because an appellant may have been unfit to stand trial, the court should quash the conviction unless it is satisfied that, had the question been raised before or during the trial which led to the conviction, the court acting reasonably must have found that the accused was fit to stand trial. It is only if the court can come to that finding that there will be no possibility of a miscarriage of justice.”

69. This passage was referred to with approval in R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [294]- [295]. In that case, the Court emphasised as follows that a reduction in the capacity of an accused with respect to the matters identified in R v Presser is insufficient if the minimum standards are nevertheless still met:

“297 The central question which arises, in this respect, is whether a reduction in the capacity of an accused to meet the requirements in R v Presser, but which falls short of denying to that accused the capacity to understand and to follow the proceedings in each of the necessary aspects, is sufficient to constitute unfitness, and to justify appellate intervention, in accordance with the test previously mentioned.
298 In our opinion, that question should be answered in the negative. The test in R v Presser is directed to the minimum requirements for a fair trial. So long as the accused can understand and follow the proceedings in each of its facets, can give appropriate instructions, and can present a proper defence to the charge, he or she is to be regarded as fit to be tried. The fact that the accused may have done so in a better way, had suitable medical treatment or medication been provided, or had that accused possessed greater intelligence or acuity of mind, does not seem to us to be relevant to the question of fitness.
299 Any other approach might invite invidious comparisons between accused of different intellectual backgrounds or personalities. It could also invite a fruitless search for a hypothetical accused with the capacity, intellectual or otherwise, which might equip him or her with the ability to conduct a defence at a predetermined level of skill.
300 That is not the concern to which the test in R v Presser is addressed. Inevitably there will be accused who could have done better in a trial, had they possessed a more attractive personality, greater intelligence or education, improved communication skills, a deeper appreciation of the factual and legal issues, or even a better appreciation of the trial process, than those possessed or displayed at trial. It does not necessarily follow that they were unfit to be tried.
301 That is because the question of fitness to be tried relates to the essential requirements identified by R v Presser. If the understanding and the mental and physical capacity of an accused means that he or she meets those requirements, then that accused is fit to be tried – a question which is itself to be decided upon a balance of probabilities. The test does not contemplate or assume that an accused is able to perform at trial according to his or her maximum potential.”

70. In that case the appellant was found to be fit to be tried notwithstanding that he had a frontal lobe dysfunction and a brain tumour which was amenable to treatment, and had displayed inappropriate behaviour during the course of the trial. The Court concluded as follows (at [303]):

“A reading of the transcript suggests that the appellant had been able to give evidence in relation to the matters in issue, that he had a clear understanding of what was involved in the offence charged, and was able to make the answer, which he wished to make, in relation to it. That circumstance, and the absence of any evidence from his legal advisors to suggest that they had problems in taking instructions or explaining the proceedings to him, or from the appellant to suggest that he had any such difficulty, leads us to conclude that this ground has not been made out, to the point where, in accordance with the decision in R v RTI the conviction should be quashed.”

The evidence on appeal

Dr Furst’s report of 11 August 2015

71. Following an assessment of the applicant on 15 July 2015, Dr Richard Furst, a consultant forensic psychiatrist, stated in a report dated 11 August 2015 that:
    • (a) the applicant “likely holds delusional beliefs about Ms Gray” (his former solicitor);
    • (b) the applicant believes that “the police prosecutor or someone else ‘coached’ the alleged victims”;
    • (c) the applicant “would probably struggle to make out his defence, if any, as a consequence of his delusions”;
    • (d) the applicant “believes that he can work with his barrister ... to make out his case. He also believes that he can work with his [solicitor]. In my opinion, he lacks this capacity because of his apparent delusional disorder and complete lack of insight in this respect”;
    • (e) other mental health practitioners who assessed the applicant in custody observed the applicant’s conspiracy beliefs, including those concerning the fabrication of the alleged victims’ statements, and the applicant was prescribed antipsychotic medication.
72. Dr Furst concluded as follows:

“Mr Hofer has a superficial understanding of the legal requirements in Court, as per the Presser criteria. However, Mr Hofer is not rational and is likely to misinterpret things that are said in court in a paranoid manner, making it difficult for him to give proper instructions to his counsel and/or accept cogent legal advice. In my opinion, he is currently psychotic and not fit to be tried.
...
In my opinion, he may become fit to be tried within the next 12-months if he has adequate treatment; however, delusional disorders tend to be refractory in nature [that is, difficult to manage], even when treated with antipsychotic medication, meaning further assessment will be required after a course of treatment is provided over several months.”

73. Contrary to Dr Furst’s recommendation, the applicant’s fitness to be tried was not re-assessed prior to his trial.

The applicant’s trial

74. The applicant’s trial commenced on 19 April 2016 and concluded on 10 May 2016. He was sentenced on 23 September 2016.
75. No reference was made during the course of the trial to any possible unfitness of the applicant to be tried. His trial counsel gave evidence before this Court that shortly after 11 August 2015 he had read a copy of Dr Furst’s report of that date but that his subsequent dealings with the applicant did not give him any concerns about his mental health which would have caused him to question the applicant’s fitness to be tried. Trial counsel said in affidavit evidence before this Court:

“Prior to the trial I conferred with Mr Hofer on a number of occasions in respect to the conduct of the trial and his defence. On each occasion he was appropriately responsive to my questions and provided detailed instructions as to what occurred on both evenings. During the course of our conferences he at all times appeared rational, and articulate.
...
At no time during our conferences and prior to the trial commencing on 18 April 2016, did I have any concerns as to Mr Hofer’s competence to understand the trial process nor his fitness to stand trial. Similarly, I observed Mr Hofer during the trial and noted that he appeared to follow proceedings closely and participate in the trial by regularly providing instructions and comments to my instructing solicitor.”

76. In cross-examination trial counsel said that an observation of Dr Furst in his 11 August 2015 report that the applicant appeared “lucid on superficial assessment” did not raise in his mind the possibility that, despite trial counsel’s observations indicating otherwise, the applicant was “suffering from significant mental illness”.
77. In evidence before this Court were 14 pages of handwritten notes prepared by the applicant as instructions to his legal representatives in relation to his trial. They deal in detail with the applicant’s version of the events that occurred on the days in question. Also in evidence was an 11 page typed document that was prepared from notes including the applicant’s handwritten notes. This document was located in the applicant’s file by his solicitor in this appeal. The applicant’s trial counsel recalled having notes of one or both of these types as part of his instructions but did not have sufficient recollection to be able to identify the particular notes that were tendered in this Court.

Reports obtained for the purposes of sentencing

78. In a pre-sentence report of 8 July 2016 Professor David Greenberg, a consultant forensic psychiatrist, concluded that he had “no reasonable grounds” to believe that the applicant was “a mentally ill person suffering from a mental illness or a mental disorder as defined within the meaning of Chapter III of the NSW Mental Health Act 2007”. He continued:

“Clinically, [the applicant] presents as a man with likely significant personality problems associated with possible episodes of depression. I could not be convinced at this time (without further collateral information from the medical records in Brisbane) that he suffered from schizophrenia or a bi-polar disorder. I have therefore not made this diagnosis at this time. Further psychiatric assessment and collateral information would be of assistance in clarifying his psychiatric diagnosis.”

79. In a report dated 6 July 2016 Ms Erin Wroblewicz, a community corrections officer, referred to the applicant as having been “diagnosed with schizophrenia in custody” and being “currently prescribed an anti-depressant and an anti-psychotic”. She said:

“[The applicant] was “housed within the Mental Health Screening Unit within the Metropolitan Remand and Reception Centre for a period of six weeks in July 2015 as he presented with ‘bizarre and grandiose beliefs’. In addition, he had not been compliant with his prescribed anti-depressant at that time.”

80. For the purposes of sentence, Dr Furst prepared a further report, dated 19 September 2016, following an assessment of the applicant made by him on 31 August 2016. Under the heading “Mental State Examination”, Dr Furst stated:

“MENTAL STATE EXAMINATION
Mr Hofer presented as a 49-year-old male of solid build with receding blonde hair and blue eyes. He had an obvious lisp, but seemed to be of above average intelligence. He was lucid and cooperative with the assessment, with no indications of a major mood disturbance or psychosis and no current concerns about the CIA or people attacking his reputation. He was not suicidal. His cognition was not formally examined.”

81. After referring to delusional thinking and emotional disturbance at the time of the applicant’s alleged offences, Dr Furst said:

“In my opinion, such delusional thinking and emotional disturbance was most likely a manifestation of his underlying schizophrenic illness, which was not properly diagnosed or treated at the time. Untreated schizophrenia often results in poor insight, impaired judgement, poor decision-making, and poor self-control, mitigating to some degree against the seriousness of his actions.”

Dr Furst’s third report

82. Subsequent to the applicant’s sentencing, Dr Furst was requested to report on the applicant’s fitness to be tried at the time of his trial. Dr Furst took account of his assessment of the applicant on 31 August 2016, reviewed the transcript of the applicant’s evidence at the trial and reported further on 17 November 2018.
83. Dr Furst commented on the transcript of the applicant’s evidence at his trial as follows:

“• He appeared to understand all of the questions put to him during evidence in chief by [his trial counsel].
• He appeared to understand all of the questions put to him during cross examination by the Crown.
• He was able to give a coherent account of the events in question in relation to the two female complainants/victims.
• He was able to give very specific answers in relation to alcohol consumption, words exchanged between himself and both victims, the sexual contacts between himself and both victims, and events following those apparent encounters.
• He was able to answer questions about his personal background/previous work.
• He indicated he knew what was in the Crown brief and knew what was in evidence before the jury (page 516 of transcript).
• I note Mr Hofer asserted that he believed the New South Wales Police Force had ‘coached’ the complainants (p 520 of transcript). On questions put to him throughout cross-examination, he acknowledged he knew the identity of the police involved but did not ask for any of the police to be questioned in his trial. He said he was ‘reserving his right to take the New South Wales police force on in the Supreme Court’ (p 521 of transcript).
• He appeared to believe that the CCTV footage had been edited to remove evidence that would assist him (p 488 of transcript)
• His belief that the two complainants had previously complained to police and at least one of them had a ‘record for making up stories under clause 61I against at least two other men’ (page 516-517 of transcript).
• A number of unresponsive answers (page 483, 486, 495, 496, 498, 506, 516, 525 of transcript).”

84. Dr Furst concluded as follows:

“Having regard to the full transcript of Mr Hofer’s evidence in chief and his cross-examination, it would appear that he was logical throughout his evidence, with potential areas of concern relating to his assertions that the CCTV had been edited in an unfavourable way by police [page 488] and that the complainant/victims [may] have been ‘coached’ by members of the New South Wales Police Force (p520 of transcript). Those assertions may well have been the product of residual paranoid underlying thinking about police at the time of this trial.
Although I am unable to provide any definitive opinion as to how such statements would have received and/or interpreted by a jury, it is unlikely that the trier of fact would have considered such statements to have been a product of an underlying mental illness, as no such evidence of Mr Hofer’s mental illness was placed before the jury during his trial.
The question of Mr Hofer’s fitness to be tried at the time of this trial is a matter for the Court to determine on the available evidence. Having regard to all of the available material and having had the benefit of assessing Mr Hofer both before and after his trial, I am of the opinion that he was reasonably stable from a psychiatric perspective at the time of his trial, that he likely had the capacity to make out his version of events, as he perceived them, to the Court. He probably also had the capacity to make out his defence, if any, throughout the course of the evidence he gave.”

Dr Furst’s oral evidence

85. In this Court Dr Furst was examined at length about his reports and his consideration of the transcript of the applicant’s evidence at his trial. His view about the applicant’s fitness to be tried remained as expressed in his third report, as indicated in the following exchange with the Crown’s counsel:

“Q. Just to finish off your opinion you expressed in the third report is that he’s likely after reviewing, taking all matters into account he’s likely to have been fit at the time of the trial?
A. Yeah.
Q. You adhere to that, you don’t rule out a possibility that he was unfit or in a psychotic state at the time of trial because you didn’t see him at the time essentially?
A. That’s right so it’s not possible to do so.”

86. As well, Dr Furst agreed that the number of non-responsive answers that the applicant gave during his evidence was not “particularly significant or out of the ordinary” and that the applicant’s assertions in evidence that there had been coaching of witnesses and editing of CCTV footage were not necessarily delusions from a psychiatric point of view but rather simply represented self-serving assertions.

Conclusion concerning the applicant’s fitness to be tried

87. Based on the evidence to which I have referred and my own assessment of the transcript of the applicant’s evidence at his trial, I consider that the test postulated in RTI has been satisfied, that is, if the question of the applicant’s fitness to be tried had been raised at his trial, “the court acting reasonably must have found that [he] was fit to stand trial” (see [68] above).
88. The only expert evidence specifically directed to the applicant’s fitness for trial was that of Dr Furst. Whilst he expressed an adverse view as to that some eight months prior to trial (in his report of 11 August 2015), he contemplated in that report that the position might change if the applicant had adequate treatment. This appears to be what occurred as, according to his report of 17 November 2016, Dr Furst regarded the applicant as relevantly fit when he assessed him on 31 August 2018, some two and a half months after the trial concluded, and expressed the view in that report that he would also likely have been fit to be tried at the time of the trial. As his oral evidence confirmed (see [86] above), his inability to rule out the possibility that the applicant was unfit to be tried at the time of the applicant’s trial was based upon the fact that he had not consulted with the applicant at the time of trial.
89. Like Dr Furst, I consider that examination of the transcript of the applicant’s evidence at his trial indicates his fitness to be tried at that time. Such an examination was treated by this Court in Rivkin as of significance. In the present case, the applicant gave evidence in a lucid and forceful manner, leaving me in no doubt that he understood the nature of the proceedings and what was occurring at the trial, and was well able to communicate his version of events and to defend his interests. Again like Dr Furst, I do not regard the small number of unresponsive answers that the applicant gave as of any significance. Overall, the applicant was very responsive in his answers. The number of unresponsive answers he gave was well within the range applicable to most witnesses.
90. Moreover, the applicant’s references to the possibility of the complainants being coached and to CCTV film being edited were quite explicable as self-serving responses by which the applicant sought to explain evidence that presented difficulties for his case. As Dr Furst acknowledged, they were in those circumstances of no real significance from a psychiatric point of view. Even if there was a delusional element to those assertions, the observations of Gleeson CJ in Eastman (see [67] above) confirm that that would not in itself be an indication of unfitness to be tried.
91. In addition, the evidence of the applicant’s trial counsel (see [75] above), the applicant’s detailed handwritten instruction notes (see [77] above) and the absence of any evidence from the applicant himself suggesting that he had any difficulty understanding or participating in the trial process strongly support the conclusion that he was fit to be tried (see the observations in Rivkin in [69] above).
92. I do not consider that the views formed by this Court, and indeed also by Dr Furst, should be given less significance because of Dr Furst’s observation in his 11 August 2015 report that the applicant appeared “lucid on superficial assessment” (see [76] above). The assessment that is able to be made of the applicant by means of scrutiny of the transcript of his evidence in court goes far beyond a “superficial assessment”.

DETERMINATION OF GROUND 3 – WHETHER THE TRIAL MISCARRIED ON ACCOUNT OF THE INCOMPETENCE OF THE APPLICANT’S COUNSEL

93. As Gleeson CJ pointed in R v Birks (1990) 19 NSWLR 677 at 685; (1990) 48 A Crim R 385, as a general rule an accused is bound by the conduct of his or her counsel at trial and incompetence of that counsel is not a ground for setting aside a conviction. Rather, the critical question in this context is whether there has been a miscarriage of justice (Ali v The Queen [2005] HCA 8; (2005) 79 ALJR 662 at 665 citing McHugh J in TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 at [79]; Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614 at [24]). Ordinarily, that question is to be determined by reference to the objective features of the trial, without regard to explanations from, or instructions to, trial counsel (TKWJ v The Queen at [8] and [16]; Nudd at [9]).
94. As indicated in addressing ground 2, the objective features of the trial in the present case indicate that there has been a miscarriage of justice. It is unnecessary therefore to resort to consideration of explanations of, or instructions to, counsel. Nevertheless, as evidence of those matters was adduced in this Court without objection, it is appropriate to indicate that regard to them confirms that there has been a miscarriage of justice.
95. The criticism of the applicant’s trial counsel made in the applicant’s written submissions on appeal was limited, first, to incompetence in failing to have the applicant’s fitness for trial reassessed prior to the trial taking place. In light of the terms of Dr Furst’s pre-trial report of 11 August 2015 (see [71] above), it is clear that counsel, who became aware of the report at or soon after it was issued, should have had the applicant reassessed. Nevertheless, no miscarriage of justice resulted because, as I have found, the applicant would have been found fit to be tried if that issue had been considered at the time of his trial.
96. Secondly, the applicant contended on appeal that his trial counsel was incompetent in failing “to object to the impugned cross-examination of the applicant, or to take steps to rectify, in any way, the unfair prejudice that this caused”. The applicant’s trial counsel did in fact object when the impermissible questions were commenced to be asked although the objection was not pursued in a persistent and vigorous fashion. Importantly however counsel failed to take any of the possible courses of action open to him to seek to overcome the prejudice to his client resulting from the impermissible questions.
97. In the present case, matters 1 to 6 identified in [34] above were clearly reflected in the instructions which it can be concluded were available to his trial counsel. The applicant’s trial counsel did in fact put the fourth matter to C2 in cross-examination. The applicant referred to the seventh matter in his handwritten instructions, writing that “[w]hilst having sex [C2] answered a phone call talking generally to a male friend. After the call I asked her if it was her boyfriend”. As evidence to a similar effect was in fact given by C2, the need to put this matter to her in cross-examination did not arise. The eighth matter was not referred to in the applicant’s instructions but was referred to in the 11 August 2015 report of Dr Furst which the applicant’s trial counsel read soon after its issue.
98. As I have said, there may well have been acceptable reasons why those matters were not put to Crown witnesses and on appeal the applicant did not contend otherwise. Instead, the criticism of the applicant’s trial counsel was that he did not take one of the steps potentially available to him to have the prejudice to the applicant remedied. These were referred to in Birks at 683 and summarised in R v Orchard at [43] as including:

“[R]e-examining the accused on his or her instructions to counsel ... , calling the instructing solicitor to testify as to the accused’s instructions, or counsel returning their brief and giving evidence as to their instructions and acknowledging error on their part ... ”.

99. In cross-examination, the applicant’s trial counsel acknowledged that he had not taken any of these steps and was unable to give an explanation for why he had not done so.

ORDERS

100. Considerable time has elapsed in bringing the challenge to the applicant’s convictions to a hearing in this Court. Counsel for the applicant explained before this Court what had occurred but as the merits of the appeal have been fully argued and I have concluded that a substantial miscarriage of justice has occurred, it is not necessary to address this point. Moreover, in light of that conclusion, any necessary leave to appeal should be granted. As a result, I propose the following orders:
     • (1) Grant the applicant leave to appeal, to the extent necessary.
     • (2) Grant the applicant all necessary extensions of time.
     • (3) Quash each of the appellant’s convictions that were entered pursuant to the jury verdicts returned in the District Court on 16 August 2019.
     • (4) Direct a retrial of the appellant on the charges on which he was convicted.
101. FULLERTON J: I have had the advantage of reading the judgments of Macfarlan JA and Fagan J.
102. I agree that leave should be granted to extend the time for filing the appeal and that leave to appeal be granted. I also agree, for the reasons given by Macfarlan JA, that ground 1 has not been made out.
103. I agree with Fagan J that grounds 2 and 3 of the appeal have not been made out and gratefully adopt his Honour’s reasons for so finding. I also agree with his Honour that even were the second ground of appeal to be made out, there has been no resulting miscarriage of justice.
104. Accordingly, in disposition of the appeal, I propose the following orders:
     • (1) Grant the applicant leave to appeal, to the extent necessary.
     • (2) Grant the applicant all necessary extensions of time.
     • (3) Appeal dismissed.
105. In proposing those orders, I wish to make the following remarks.
106. I endorse the concerns expressed by Fagan J that where a prosecutor embarks upon a cross-examination of an accused on the basis of defence counsel not having put to a prosecution witness a matter about which the accused later gives evidence, whether that is done to lay the foundation to put to the accused that they are fabricating their evidence or to make an adverse comment on their credibility in closing address, in strict compliance with the prosecutor’s overriding duty of fairness, the prosecutor should only pursue that line of cross-examination where there is a proper basis to do so. The obligation of the prosecutor to refrain from any cross-examination of the accused that may give rise to unfairness is fundamental to a fair trial.
107. As with the cross-examination of the accused in this case, I suspect that all too frequently the forensic caution which a prosecutor should exercise before embarking upon a cross-examination of an accused with a view to laying the ground work for what Fagan J conveniently described in [123] of his judgment as a “Birks comment” on the accused’s evidence, is overlooked or the importance of caution not appreciated. The reasons for the need to exercise caution are numerous and obvious (see the extract of Llewellyn v R in Fagan J’s judgment at [125] where Garling J reviewed the authorities and the principles that emerge from R v Birks and later authorities at [136]-[137]).
108. An incautious or intemperate cross-examination of an accused directed to what was “not put” to a Crown witness may have the unintended effect of driving a wedge between the accused and counsel, including where the explanation for defence counsel’s failure to cross-examine a Crown witness in a particular way would, or might, reveal a privileged communication, including the accused’s refusal to follow counsel’s advice or the accused’s failure when giving evidence to appreciate the significance of that advice. An incautious or intemperate cross-examination of an accused might also have the unintended effect of doing nothing more than exposing a failure on the part of defence counsel to cross-examine a Crown witness because of ineptitude or carelessness, neither of which should be permitted to operate to penalise the accused. Where this does occur, it becomes the responsibility of the trial judge to alert the jury to the range of explanations for why a particular question was not asked, or a line of questioning not undertaken by defence counsel, in order to avoid the risk of unfairness to the accused from the prosecutor’s questioning.
109. In some cases (and in my view this is one of them), while there may be no unfairness to an accused of that particular kind, it nevertheless becomes obvious to the prosecutor, usually after the event, that such inconsistency between the accused’s evidence and the approach of defence counsel in discharge of their duty to contradict a prosecution witness about the matters of fact that are in issue in the trial as might at one time have appeared to be material, pales into insignificance in the context of the cross-examination as a whole. Where this occurs, the Crown invariably makes no ultimate submissions about the cross-examination in closing address and the cross-examination is left in forensic limbo. In those circumstances, it would seem to me to follow that no proper basis for the adverse inference inherent in the Birks comment was ever available, and that were a more considered approach to have prevailed at the outset, the impugned cross-examination would not have been embarked on at all.
110. I agree with Fagan J’s observations at [126] that even where it is shown on appeal that the prosecutor cross-examined the accused about the apparent failure of defence counsel to put a proposition, or state of affairs, to a Crown witness without an adequate basis, or where the jury is invited by the Crown to draw an inference adverse to the accused’s credit without adequate guidance or direction from the trial judge, a miscarriage of justice may not be the inevitable conclusion. The significance of the Crown’s cross-examination of an accused with a view to making a Birks comment will likely depend on the relative importance of the matter that was not put to a Crown witness, including its significance in the context of the issues that were litigated at trial, and the way in which those issues were dealt with by the Crown and the defence in final addresses. I acknowledge, as does Fagan J at [124], that in a particular case the significance of the matter not put may be so central to the matters in issue that the cross-examination of the accused about it is capable of adversely impacting upon the accused’s credit, including by laying the foundation for a submission that they were fabricating their evidence.
111. However, for the large majority of cases not in that category, this Court is frequently given the task on appeal of unravelling whether the Crown lacked justification for questioning the accused to justify the making of a Birks comment, or whether the jury were given sufficient guidance as to what inferences they might properly draw from that cross-examination, or both, in order to determine whether the impugned questioning was productive of such unfairness that a miscarriage of justice has been occasioned.
112. I propose a practical way of averting the risk of a trial miscarrying or a conviction being overturned where a prosecutor has embarked upon a cross-examination of an accused with a view to laying the foundation for a Birks comment without a proper basis for doing so without limiting the entitlement of the prosecutor, in an appropriate case, to seek persuade the jury that the accused’s account has been recently invented or fabricated. This approach may also avoid a conviction being overturned because a trial judge’s directions about the prosecutor’s cross-examination either gave it unwarranted significance by diverting the jury from the matters which ought to have been the focus of their attention or because the directions were inadequate in some material respect.
113. Where the prosecutor identifies in the accused’s evidence a material fact or a state of affairs which was not put to a Crown witness for their comment by defence counsel, before embarking upon a cross-examination of the accused the prosecutor should apply for leave to reopen the Crown case for the limited purpose of having the witness recalled. This will allow cross-examining counsel to put the matter to the witness, or if counsel does not wish to do so, perhaps for valid forensic reasons, for the Crown to invite the witness to comment upon the matter raised or volunteered by the accused. Where appropriate an application for leave to ask a leading question may need to be made.
114. In making the application for leave to recall the witness, the circumstances underpinning the failure to cross-examine the Crown witness will inevitably be exposed, logically either a decision deliberately taken by defence counsel or a failure to do so through inadvertence or carelessness. Where the prosecution witness is recalled on the Crown's application (perhaps a joint application with defence counsel), and the witness denies the matter asserted by the accused, the credit contest is between the witness and the accused, as it should be.
115. That approach would likely have avoided altogether what happened in this case. Here the prosecutor’s cross-examination of the accused proceeded on the untested assumption that defence counsel would have “put” the various matters to the complainants, were those matters the subject of instructions from the accused, because he would have been obliged to do so. This same untested assumption presumably grounded the prosecutor’s belief at the time he embarked on the cross-examination that he had a proper basis to lay the foundation for a closing submission that the accused should not be believed, either because he was adding to his evidence to shore up his credit or lying with the same motive. If the prosecutor did not hold that belief, the cross-examination should not have been embarked upon at all. In this case, were he to have taken the approach I propose, the untested and, in my view, misplaced assumption by the prosecutor that he had a proper basis to embark on the cross-examination of the accused, would have been exposed and the cross-examination avoided altogether.
116. The Crown’s failure to take what I regard as an appropriate and cautionary approach before putting to the accused that he was fabricating his evidence has been revealed. He made no attempt to clarify with defence counsel whether the accused had in fact instructed him as to any of the six matters in contention but which counsel had overlooked putting to the complainants, or to clarify whether counsel had made the forensic decision not to put to the complainants some of the features of his instructions and the accused had volunteered those details against advice or, perhaps, enquiring of counsel whether he had overlooked advising his client not to volunteer those details,.
117. In the result, no submission was advanced by the Crown as to what the jury might make of the cross-examination in their deliberations to verdict likely because the Birks comment was abandoned as without forensic weight or significance. It seems to me that the impugned cross-examination, at its highest, went no further than the Crown’s criticism of defence counsel’s lack of thoroughness in his questioning – a matter that was entirely peripheral to the jury’s deliberations. Viewed in that way, and after taking into account the detailed analysis undertaken by Fagan J of the import of the prosecutor’s cross-examination of the accused in the context of the issues at trial and the full complement of evidence in the trial, I am satisfied no miscarriage of justice has resulted.
118. The challenge the accused makes to the competence of his counsel is limited to his failure to take steps to avert the consequences of the prosecutor’s misguided cross-examination of the accused, by either objecting to the cross-examination, or at least seeking a direction from the trial judge that the failure to put propositions to the complainants may be explained for any number of reasons which have nothing at all to do with whether the accused’s account is true, or might possibility be true. While that is a course that might have been taken, given the way that defence counsel litigated the trial on the accused’s behalf, with the focus in his cross-examination of the complainants and in his closing address on whether the Crown could prove beyond reasonable doubt the accused knew or believed the complainants were not consenting to intercourse, a forensic approach which was not suggested by the applicant’s counsel on the appeal to reflect adversely on trial counsel’s competence, the failure to seek or object to the intervention of the trial judge does not amount to incompetence of a kind which would warrant the overturning of the convictions.
119. FAGAN J: As proposed by Macfarlan JA, I would grant the necessary extension of time and leave to appeal. For the reasons given by Macfarlan JA I would reject ground 1. I have reached a different conclusion from his Honour regarding ground 2, which I would also reject, and I would reject ground 3. I would dismiss the appeal.

Principles relevant to ground 2

120. The cross-examination complained of under ground 2 arose from perceived breaches of the rule in Browne v Dunn (1893) 6 R 67. That rule was expressed in the following terms by Hunt J in Allied Pastoral Holdings Pty Ltd v FCT [1983] 1 NSWLR 1 at 16:

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.

121. It has been held that this rule of practice applies in criminal trials in New South Wales (R v Birks) although in MWJ v The Queen [2005] HCA 74 at [18] Gleeson CJ and Heydon J noted that:

[F]or reasons explained, for example, in R v Birks, and R v Manunta, it is a principle that may need to be applied with some care when considering the conduct of the defence at criminal trial.

In the same case Gummow, Kirby and Callinan JJ said at [41] that the rule cannot be applied to an accused in a criminal trial “without serious qualification”.

122. Ground 2 is concerned with one of the potential sanctions for non-compliance with the rule in Browne v Dunn, namely, inviting the jury to disbelieve evidence of a matter that has not been put to an opposing witness. In JD Heydon, Cross on Evidence, (11th ed 2017, LexisNexis) at [17460] the learned author describes that sanction in the following terms (from which I have omitted the author’s copious citation of authority):

[W]here the party whose counsel has breached the rule in Browne v Dunn subsequently calls evidence inconsistent with that of the earlier witness, the party may be exposed to comment that the inconsistent evidence is not in accordance with the party’s instructions to counsel and should be disbelieved as a recent invention. Comment of that kind may overlook two explanations for the inconsistency which do not reflect on the credibility of the party or the party's witness: error on the part of counsel or a conscious tactical decision on the part of counsel (ascription of the latter is of course sometimes a mendacious euphemism cloaking the former). Another explanation may be that the non-party witnesses were less than fully co-operative in providing statements. Where the possibility of drawing an adverse inference is left to the jury, in general it should be assisted by referring to the possible operation of these factors (though problems would arise in relation to conscious tactical decisions), because jurors are not familiar with the modes of preparation for trials, the course of trials, or the wide discretion available to counsel in the conduct of trials. An advocate who intends to comment on the calling of evidence inconsistent with a party's instructions is obliged by the rule to put the inferences which are to be drawn from the inconsistency so that the party may give whatever explanation can be given. If that advocate gives notice of an intention to comment in that fashion, the judge may prohibit the making of a comment.
The jury should not be left with the impression that the rule is an inflexible principle breach of which necessarily connotes unfairness in view of the fact that there can be good reason for the rule not being observed. It is impermissible for the prosecution to make a submission inviting an unfair application of the rule.
The judge decides whether there has been an omission attracting the rule if the sanction invoked requires some order or direction from the judge. The jury decides that question if the sanction invoked is their disbelief.

123. If a jury is to draw an inference adverse to the accused as a result of defence counsel not having put to a prosecution witness a matter of which the accused later gives evidence it would seem that three premises must be demonstrated from which the jury would be invited to follow a particular path of reasoning. The first premise is that the matter was not put to the relevant witness. The second is that defence counsel had a duty to put in cross-examination all relevant matters of which the accused had provided instructions. The third premise is that counsel fulfilled this duty. The jury is then invited to infer that because the matter was not put, defence counsel must have had no instructions as to it when conducting his cross-examination; therefore the accused must have fabricated his evidence on the matter after questioning of the Crown witness had concluded. This is broadly how the jury were invited to reason in R v Birks. As a shorthand I will refer to this as a “Birks comment” on the accused’s evidence.
124. Amongst the examples in the cases of the Crown cross-examining an accused along these lines there are some in which questions have been asked of the accused concerning all three premises and where the Crown has also suggested a conclusion of recent invention directly to the accused. Further explanation of the reasoning has subsequently been given in the Crown’s final address and/or in the summing up. In other cases the accused has been cross-examined as to the premises but the path of reasoning and the conclusion of fabrication have been left to final address and/or to the summing up. A matter that has not been put to a Crown witness may in a particular case be so important and the failure to put it so stark that cross-examination of the accused on the premises of a Birks comment may carry the clear implication of recent invention even before the reasoning has been spelt out.
125. In Llewellyn v R [2011] NSWCCA 66 at [134]- [135] Garling J considered R v Birks and extracted the principles from that and later authorities as follows:

[136] This Court has subsequently dealt with this issue in R v Dennis [1999] NSWCCA 23 at [35]- [37] per McInerney J, at [45]-[51] per Spigelman CJ; R v Abdallah [2001] NSWCCA 506 at [19]- [24] per Sheller JA; Picker v R [2002] NSWCCA 78 at [38]- [62] per Smart AJ; R v Scott [2004] NSWCCA 254 at [41]- [63] per Hulme J; R v Banic [2004] NSWCCA 322 at [23]- [29] per Barr J; and RWB v R [2010] NSWCCA 147 at [63]- [102] per Simpson J.
[137] From these authorities I derive the following principles which can be shortly stated:

(a) Where a defence counsel has failed to put something to a prosecution witness in cross-examination, it may be legitimate, depending on the circumstances of the case, to draw appropriate conclusions from that failure: R v Manunta [1989] SASC 1628; (1989) 54 SASR 17; R v Birks at 690-692 per Gleeson CJ; R v Scott at [41]-[63] per Hulme J.
(b) To suggest that the only appropriate conclusion to be drawn is that the accused's evidence should be disbelieved, perhaps as a recent invention or as part of an attack on the credibility of the accused, is a process of reasoning that is fraught with danger and must be approached with caution. There could be many reasons why a defence counsel chose to conduct cross-examination in a particular way: R v Manunta; R v Birks at 691-692 per Gleeson CJ; RWB v R at [101] per Simpson J.
(c) Before a crown prosecutor makes such a suggestion, either in cross-examination of the accused or in summing up to the jury, the crown prosecutor must have a proper basis for it. This is consistent with the specific duties owed by prosecutors, and also the general duties of all barristers: Whitehorn v The Queen [1983] HCA 42; (1983) 152 CLR 657 at 663-664 per Deane J; rr 35 & 62-64, NSW Barristers' Rules .
(d) Except in the rarest of cases and only where a proper basis exists, cross-examination of the accused in this manner is highly and unfairly prejudicial to the accused, with the potential to undermine the requirements of a fair trial: R v Birks at 703D per Lusher AJ; R v Dennis at [45]-[46] per Spigelman CJ; Picker v R at [41]-[42] per Smart AJ.
(e) It is unsatisfactory for a crown prosecutor to embark upon this type of cross-examination without a proper basis, and then to rely upon a defence counsel in re-examination or address, or the trial judge in directing a jury during the summing up to try to mitigate the prejudice to the accused. However, if left in this position, the trial judge must, along with giving the usual directions as to the drawing of inferences against the accused, give clear directions to the jury as to the range of possible explanations for a failure by defence counsel to put something to a prosecution witness: R v Manunta; R v Abdallah at [24] per Sheller JA; Picker v R at [47]-[62] per Smart AJ.

126. Where cross-examination of this nature has taken place without a proper basis, or where the Crown or the trial judge has invited the jury without appropriate qualifications to draw an inference adverse to the accused’s credit, there will not necessarily be a miscarriage of justice. The effect upon the trial may depend upon the relative importance of the matter that was not put to a Crown witness and in relation to which the Birks comment was made. RWB v R [2010] NSWCCA 147 is an example.
127. In RWB v R the Crown cross-examined the accused about his counsel’s failure to put to the complainant an event that the accused subsequently asserted in his evidence in chief, “the clear suggestion [of the cross-examination of the accused] being that he had fabricated this part of his evidence”: see [6]-[7]. The Crown in final address invited the jury to conclude that the accused was “making that up” because:

We don’t hear that until he gets into the witness box. That was never suggested in cross-examination that that had occurred (at [64]).

128. The trial judge then told the jury (at [65]):

The significance of that is, counsel are supposed to put adverse suggestions to witnesses so they have a chance to deal with them and you would assume that both counsel behaved ethically in this matter. [...] The significance of [defence counsel] not suggesting [the relevant matter to the complainant] is that she was under a duty, if the accused had told her about this incident to put that. You could conclude that [defence counsel] had not been told that by the accused and there was no explanation sought from the accused in re-examination as to any matter of that kind [ie any alternative explanation].

129. It was conceded by the Crown on the appeal in RWB v R “that the submissions of the Crown prosecutor ought not to have been endorsed by the directions of the trial judge, at least without [identifying] alternative potential explanations for the omission of counsel to cross-examine on that subject matter”. However, at [114]-[118] Simpson J (as her Honour then was) concluded that the matter that had not been put to the complainant was “of minimal significance”. Assuming that the accused had not mentioned it to counsel, that was unlikely to have been important to the jury. Her Honour said that “the evidence in question did not have, in the trial, anything like the significance it has assumed in the appeal”; the Crown’s comment in final address and the trial judge’s endorsement of that comment occasioned no miscarriage of justice. Johnson and McCallum JJ concurred. Even if this ground of appeal had been made out their Honours would have applied the proviso in s 6(1) of the Criminal Appeal Act 1912 (NSW).
130. Unlike other cases in which cross-examination of this type has been considered, the present application for leave does not in my view turn upon whether the Crown lacked justification for questioning the accused for the purpose of making a Birks comment. Nor does it turn upon whether the Crown or the trial judge insufficiently explained to the jury the range of reasons why defence counsel might not have put certain matters to Crown witnesses. The questioning impugned under ground 2 was only a fragment of what would have been required to convey to the jury an implication of recent invention. It was inconclusive and ineffectual. It was not followed, either in the Crown address or in the summing up, by any invitation to the jury to reason that because matters were not put to Crown witnesses therefore the accused must have fabricated them. No path of reasoning toward such an inference was articulated, at any stage of the trial.
131. R v Dennis [1999] NSWCCA 23 provides, by way of counter example to the present case, an illustration of a trial judge explaining to a jury both the premises for an inference of recent invention and the reasoning by which that inference might be drawn:

[31] [The trial judge] then went on to discuss the evidence of Mr Cook and said,

“It was never suggested to Mr Cook that he was lying about seeing the accused look through the wallet and [the Crown] suggested to you that this was because the accused was changing his version, even as he was giving evidence in the witness box it seems".

[32] His Honour went on to describe to the members of the jury what happens between a barrister and his client. He said that the barrister asks questions based on what the client tells him is the situation, usually through a solicitor, and that counsel is then under an obligation to put those questions or those matters to witnesses. His Honour said (SU-14):

"What the Crown says to you is that it was never put to Mr Cook that he was lying and therefore you can infer that counsel never had those instructions and that the accused therefore, when he gave evidence denying the evidence of Mr Cook, that he had looked through his wallet, was changing the version that he must have given his counsel."

132. Nothing like that was offered to the jury in the present case, by the Crown or by the trial judge. The impugned questioning of the applicant did not go beyond the first premise of a Birks comment. The jury could not have taken from the cross-examination any more than that the Crown was critical of defence counsel’s lack of thoroughness in questioning the two complainants. The present case has similarities with Lysle v R [2012] NSWCCA 20 where the Crown’s questions “were not calculated to take the Crown far” and were not found to be unfair: at [32]-[36] (RS Hulme J, Basten JA and Schmidt J agreeing).
133. To elucidate the absence of prejudice from the questioning in this case it is necessary to consider each of the nine impugned passages individually, taking into account the limited extent to which the Crown addressed on some of them. It is also necessary to have regard to their collective effect. The first passage concerned a matter that defence counsel had not put to complainant C1, relevant to counts 1-8. The eighth impugned passage concerned a failure to put to police officers that they had coached witnesses. The other seven passages concerned matters not put by defence counsel to complainant C2, relevant to counts 9-11. Some reference should first be made to the context in which the questioning took place.

Evidence and corroboration of C1 – counts 1-8

134. Macfarlan JA has summarised the evidence of C1 at [6]-[10]. Some additional details seem to be important. The applicant lived in a house that he shared with others. He had the use of a single bedroom. The advertisement he placed on the internet, to which C1 responded, displayed a photograph of the bedroom showing one double bed. Within the advertisement was a heading “The Property”, under which there were particulars including “1 bedroom house” and “1 bathroom”. Under a second heading, “The Room”, the particulars included “Prefer females” and “1 room available”. C1 gave evidence that she interpreted this as meaning that a bedroom was available for her exclusive use. She only learned during the course of her evening with the applicant that he occupied the bedroom depicted and that he was offering to share it. C1’s recollection was that this was discussed during the hour between 11:00pm and approximately midnight while they were at the bar known as The Little Guy. At that time the applicant told C1 he could bring in another bed if they reached agreement on her moving in. She said that she would want that.
135. The effect of C1’s evidence was that the applicant plied her with alcohol at two bars over approximately 3½ hours from about 8:30pm until about midnight. He bought all the drinks, including a number of strong cocktails. C1 said that the applicant ordered drinks for her without asking while she was in the bathroom and that he encouraged her to drink by telling her of a custom that each time he said “Cheers” they should both drink two finger widths together. None of this was disputed. However, in cross-examination by the Crown the applicant denied that he was “trying to get [C1] drunk”. He denied that she appeared affected by alcohol when they left The Little Guy at midnight and walked to his house, ostensibly for the applicant to show C2 the room available to share. He presented her with a bottle of alcoholic cider when they arrived at the house.
136. It was common ground that acts of sexual intercourse took place between the applicant and C1. She gave evidence that she did not consent to intercourse of any kind. That evidence was compelling. At the time the applicant was 47 years old. He was about 6 foot 3 inches tall. At 130 kg he was carrying significant weight. C1 was 23 years old and had only met the applicant that evening for the purpose of looking at accommodation. Her evidence that she was not sexually interested in him was given convincingly and must have appeared highly credible to the jury, taking into account their age difference and the brevity of their acquaintanceship. Having regard to the uncontested evidence about the quantity of alcohol C1 had consumed, the jury had no reason to doubt her evidence that when she was in the applicant’s room and he commenced sexual acts she felt physically helpless and was drifting in and out of consciousness. Therefore, although C1 did not suggest that she physically resisted the applicant, this did not cast doubt on her evidence that she was not consenting.
137. C1 gave evidence that when she felt the applicant taking her dress off she said, “No, I don’t want to do anything”. She said she “wanted to protest more [...] but I felt very intoxicated and was unable to respond properly”. The applicant progressed from massaging her back to massaging her bottom and then penetrating her with his fingers. He next “asked if he could go down on [her]” and C1 said she did “not believe [she] responded to [that] in any coherent sort of language” because of her intoxication. The applicant continued to perform various sexual acts whilst she felt “like a rag doll at that point, and unable to have control of my limbs”. During these acts she repeated to him “multiple times”, “Stop” and, “No, I don’t [...] want to have sex. I want to go home”.
138. Immediately following the sexual assaults, while in the bathroom of the applicant’s house, C1 sent a text message, “Help”, to her friend. Shortly afterwards, upon getting into a taxi on Glebe Point Road, C1 exhibited distress that was apparent to the driver. In the early hours of the morning, after a short journey to her backpacker hostel in Darlinghurst, C1 said to another occupant of the hostel, “I think I’ve been raped”. All of these matters corroborated C1’s direct evidence of non-consent.
139. In light of the strong Crown case that C1 did not consent it is unsurprising that defence counsel made little effort to elicit from her in cross-examination that she was in fact consenting. In one question counsel asked whether, during the applicant’s sexual acts, C1 “really did not care what [she] and [the applicant] did that night”, to which she replied, “I did care, sir”. Later in the cross-examination defence counsel suggested that C1 had “attempted to masturbate him”. She replied:

I’m fairly certain that didn’t happen, sir.

In response to further questions as to her degree of certainty regarding this, she said:

I’m fairly certain meaning that in my intoxicated state I am not hundred per cent positive, but I would say I am 99 per cent positive that did not happen.

That was as far as cross-examination went towards challenging C1’s evidence of non-consent.

The applicant’s evidence on counts 1-8

140. The applicant’s evidence in chief was that C1 expressly consented to the sexual acts that he acknowledged having engaged in. He said that at the outset he asked C1 if he could remove her clothing “and she said yes”. When he had difficulty undoing a clip, “she undid the clip and stood up and removed her dress”. He said that he massaged her for 20 to 30 minutes and then:

I asked her if she would like me to - I either used the words lick her or go down on her, which she said, yes.
I performed oral sex on her and while I was giving oral sex I also used my fingers and I believe she had an orgasm.

141. The applicant said that he believed C1 consented to him using his fingers. He denied that he had penile vaginal intercourse with C1 at any stage. He said that throughout his sexual acts with her:

... she never used the word stop at all that night and she never used the word no.
She did nothing in any way whatsoever to indicate that she did not want it to happen.
... she was masturbating my penis.
... she had her hands around my penis and I was moving her hand in an up-and-down motion.
Q. Did you ask her to do that?
A. No, I did not.

First impugned passage of cross-examination – counts 1-8

142. In cross-examination the applicant denied that at the bars he was “trying to get [C1] drunk”. He said that when he touched her in the second bar he believed “from her body language she indicated that she was receptive, however I could be wrong”. He claimed that they had held hands either in one of the bars or when leaving one of them. He said he had believed, during their time together in the bars, that C1 was sexually interested in him. He rejected propositions that in his bedroom C1 had said no when he asked her if he could perform oral sex on her and when he asked her to perform oral sex on him.
143. Following the above topics of cross-examination, the first impugned passage occurred, as follows:

Q. Mr Hofer you gave evidence yesterday that you think [C1] might have had an orgasm, is that what you said?
A. That’s correct.
Q. Did you hear that put to [C1] in cross-examination?
A. I can’t recall big fat details of the question that was put to her or the answer that was put to her.
Q. Did you hear it suggested to [C1] that she might have had an orgasm?
A. I can’t--

An objection was then taken and the questioning went no further.

144. This cross-examination had no prejudicial effect. In fact it had no effect whatsoever. The applicant did not concede that the relevant matter had not been put to C1. The question whether or not this had been absent from defence counsel’s questioning of her was left in the air. The prosecutor’s cross-examination did not reach the point of establishing even the first premise for reasoning to a conclusion that the applicant must have recently fabricated his thought that C1 “might have had an orgasm”. The second and third premises of a Birks comment were not mentioned. The reasoning toward such a comment was not spelled out by the cross-examiner. The questions did not of themselves imply, to a jury unschooled in the principles in Browne v Dunn and R v Birks, that the applicant must have changed his story between giving instructions to his counsel and giving evidence on oath, or that he must be unworthy of credit.

Reference to the first impugned passage in the Crown address

145. In final address the Crown urged the jury to “accept without hesitation [C1’s] evidence that she said from the outset no sex and that she communicated that clearly to the accused”. The Crown submitted that from this “it was clear to the accused that she was not consenting to any sexual activity”. Further, on the element of knowledge of non-consent the Crown argued that the jury would be satisfied:

that her state of extreme intoxication, she described it as passing in and out of consciousness over the course of the time that she was in this room, would have been so clear to the accused that even if [C1] didn’t explicitly or coherently object to each individual act, the accused was at the very least completely reckless, utterly reckless as to her consent.

146. Following this the Crown said:

The accused then told us that he used his fingers while performing oral sex on her, that wasn’t put to [C1] at any stage, and he also told us she might have had an orgasm, and that is also another detail that was never put to [C1] for her comment.

147. As was the case when the first passage of impugned cross-examination took place, the prosecutor said nothing in his address to explain what if any significance the jury should attach to defence counsel’s failure to put details to the complainant, let alone by what path of reasoning. The jury could not have read into this single sentence an invitation to conclude that the applicant was not to be believed, on any particular point or generally, because of an omission from his counsel’s cross-examination. I do not see that the jury could have filled in the missing premises and worked out for itself a logical basis for inferring that the applicant must have recently invented the possibility that C1 had an orgasm.
148. In any event the point was of no consequence. Whether or not the applicant thought C1 “might have had an orgasm” was immaterial to any issue in the case. At best, it was peripheral. No argument was ever presented to the jury in address or in summing up as to how the applicant’s thoughts on this possibility might bear upon whether she consented to his sexual acts (an element that was not put in issue in defence counsel’s final address) or upon whether the applicant knew she was not consenting when he commenced intercourse with her (which was made the critical issue in address).
149. The meaning for the jury of this small part of the Crown address was obscure not only for lack of the premises and articulated reasoning for an inference of recent invention. It was obscure also because it included criticism of the failure to put to C1 an act of digital penetration. This was an uncharged additional particular of intercourse that the applicant volunteered, potentially against his own interests, as an addition to the cunnilingus that was the subject of count 3.
150. The Crown’s inconclusive comment in address did not provide retrospective explanation of the first impugned passage of cross-examination, so as to give that questioning a prejudicial effect. The defence address made no reference to any of the Crown’s cross-examination about failure to put matters to the complainants. Nor was any of that cross-examination referred to in the summing up. Hence, nothing occurred later in the trial to make the first impugned passage of cross-examination any more significant or prejudicial than it had been when the questions were asked. Nor could any of the other impugned passages, considered below, have been perceived by the jury to combine with the first passage to alter its anodyne complexion.

Evidence and corroboration of C2 – counts 9-11

151. Accepting Macfarlan JA’s summary of C2’s evidence in chief (at [15]-[22]) I note the following additional details of the case concerning counts 9-11. The applicant and C2 had dinner at a Thai restaurant over about half an hour from 8:00pm. They had drinks at a nearby hotel for another half hour to 9:00pm and then continued drinking at The Little Guy from 9:00pm until 10:30pm. An Irish girl who spoke with C2 at The Little Guy said that she was evidently intoxicated and that she expressed concern at being in this state, late in the evening, without yet having undertaken the room inspection that was her purpose in meeting with the applicant.
152. When the applicant and C2 left The Little Guy at 10:30pm to walk to the applicant’s house, CCTV footage showed C2 holding onto the hand of the Irish girl and the applicant prising it free and pulling C2 towards him and away from the premises. In oral evidence the Irish witness confirmed this interpretation of the footage. C2 said that she had never before been as drunk as she was when she left the bar. She could not walk properly.
153. In examination in chief C2 said that once inside the applicant’s room, where she thought she was to make an inspection, the applicant pushed her onto the bed and held her down forcibly. He pulled her pants off and at the same time said, “Let’s just do this”. She said, “No, I don’t want to do this” and tried to close her legs “but he pulled them really a lot and, yeah, my legs just fell open”. He then had penile vaginal sex with her (count 9) while she “just kept telling him I don’t want to do it, and I just froze, I didn’t even ... hit him or anything, I just lay there”. C2 said that her upper clothing remained on. Then the applicant “flipped [C2] over” and “opened [C2’s] legs from the back” and penetrated her again (count 11). She said that at some time during the sexual activity she attempted to speak on her mobile phone, which was within her reach on the bed.
154. In cross-examination the applicant’s counsel put the following matters to C2, each of which she denied:
     • (1) that she undressed herself and when the applicant attempted to remove her top she said, “Allow me” and did it herself;
     • (2) that at the commencement of the applicant’s sexual acts she did not say no and in fact said nothing more after the words “Allow me”;
     • (3) that she “crashed” on top of the applicant and initiated intercourse;
     • (4) that the applicant suggested oral sex and she said yes;
     • (5) that he performed oral sex on her;
     • (6) that she got on top of him after the oral sex and had penile-vaginal sex;
     • (7) that the applicant suggested to C2 “to do it doggy” and they had further intercourse;
     • (8) that she offered to perform fellatio on him.
155. When cross-examined about her behaviour at The Little Guy, C2 agreed with counsel’s suggestion that the applicant touched her on the bottom. She said this made her uncomfortable and caused her to get up and dance with some girls. She agreed that the applicant kissed her but she said she did not reciprocate and just stood there. Counsel suggested that the applicant embraced her in the bar. C2 said that he “pulled [her] in for a hug” and that, again, she did not reciprocate. The Irish witness said that the applicant “kept putting his arm around [C2’s] waist and trying to get her attention” and in response she “just latched onto my arm and sort of kept pulling at my arm and trying to push his arm away”. C2 rejected defence counsel’s proposition that she and the applicant discussed having sex while they were still at the bar.
156. Defence counsel pressed C2 with photographs taken after she left the applicant’s house at about 11:30pm following his sexual acts. These showed that she had her arm around his waist as the 433 bus pulled up for her on Glebe Point Road, that she kissed him immediately before boarding and that she smiled as she stepped on. She said that the smile was a pretence and that she had her arm around him and kissed him because she was afraid and in shock after what had happened in his room.
157. C2 said that she was physically repulsed by the applicant. Her evidence of non-consent was strongly corroborated by her behaviour the moment the bus departed. CCTV footage showed that she immediately commenced to cry inconsolably and to pull at her clothing. She spoke on the phone to a friend, hysterically. Her uncontrollable distress continued when she joined her friends in the city and subsequently when she was attended by police.

The applicant’s evidence – counts 9-11

158. The applicant said that C2 appeared in a happy mood and only slightly intoxicated when she arrived with him at the front of his house. He said that in his room they both fully undressed themselves, she lay face down on the bed and he massaged her. Then he asked “would you like me to lick you, but it could have been, go down on you” and she said yes so he “performed oral sex”. He said that C2 then “crashed above me, grabbed the base of my penis and inserted ... my penis into her vagina. She did not ask for my consent”. The applicant said that intercourse stopped when C2 attempted to speak on the phone and he then asked “if she would like to perform oral sex on me”, to which she said yes and “performed fellatio on me”. He claimed that he asked C2 “if she would like to do doggy style”, to which she said yes and assumed the position. He said he proceeded to have penile vaginal intercourse with her in that position and asked if he could ejaculate inside her. She agreed and they both had an orgasm.
159. Under cross-examination by the prosecutor the applicant denied that C2’s wishes were “quite irrelevant to you by an early stage of the evening”. He denied that he set out to get her drunk and said that she did not become “very inebriated”. He maintained his description of the sexual activity between himself and C2 in his bedroom and rejected the proposition that this account was deliberately untruthful. C2’s account of the activity and of her saying no to the applicant was put to him in full by the prosecutor but he rejected it.

Second and third impugned passages of cross-examination

160. The second impugned passage of cross-examination concerned the applicant’s assertion, in response to a question from the Crown, that C2 told him she was bisexual not a lesbian. The only questions and answers in this passage that appear relevant to ground 2 are the following:

Q. She told you she was a lesbian, didn’t she?
OBJECTION RELEVANCE
WITNESS: She told me that she was bisexual. There’s a big difference between being a lesbian and being bisexual.
CROWN PROSECUTOR
Q. Did she or did she not tell you that she was a lesbian?
A. No she did not tell me that.
Q. She said that she was bisexual is that what you this jury [sic]?
A. That is correct.
Q. Did you hear that put to [C2] at any stage in this trial?
A. I don’t believe it has been put to her actually, it was put to her that she stated that she was a lesbian and she also stated that the guy testified, the African guy, that they had been together sexually, although she did not use the word sexually.
...
Q. Did she, or did she not, tell you that she was a lesbian?
A. No she did not.
Q. Did you hear it ever put to [C2] during the trial that she said to you that she was bisexual?
A. I don’t believe that has been put to her during the trial.
Q. No not once. She told you she was a lesbian didn’t she?
A. No she did not say she was a lesbian.

161. The third impugned passage, four pages further on in the transcript, concerned the same subject. It followed questions put to the applicant about whether he would have been jealous if C2 had wanted to remain in one of the bars, without him. The third passage proceeded as follows (emphasis added):

Q. Because an 18 year old woman who told you [that she] was a lesbian, decided not to go home with you?
A. I told you before she did not tell me that she was a lesbian, she told the Irish girl according to the Irish girl’s evidence who testified here that she was a lesbian. It may have been that the Irish girl was a lesbian.
Q. Mr Hofer one more time, you never heard it put to [C2] did you at any stage that she hadn’t told you she was a lesbian not once?
A. She did not tell me at any stage she was a lesbian, and may be my barrister should have cross-examined her better.

162. These second and third passages of cross-examination, like the first, only addressed one premise of a Birks comment and did not articulate reasoning to support an inference of recent invention. The Crown did not ask the applicant about the second and third premises (regarding the duty of counsel to put all matters upon which the applicant had instructed him) or confront him with the implication that he had changed his account. But unless these matters were presented to the jury at some point – and they never were – the questioning went nowhere. In addition to the prosecutor refraining from any suggestion that defence counsel’s questions of C2 indicated a lack of instructions about the lesbian/bisexual matter, he made no challenge to the applicant’s answer (in bold), “may be my barrister should have cross-examined her better”. The Crown acquiesced in deflection of blame to counsel, neutralising any inference of a change of account between the applicant’s instructions and his evidence on oath.
163. In address the Crown made no express submission of recent invention based on these two passages. The only reference to this part of the impugned cross-examination was this:

[T]he accused gave evidence that what [C2] told him was that she was bisexual. That was not a proposition, you might think, that was ever put to [C2] and I want to submit to you that you would accept [C2’s] evidence that she said to him that she was a lesbian, that she had a girlfriend, didn’t say to him that she was bisexual ...

164. That submission was followed by a reminder of evidence regarding a contemporaneous text message sent by C2 to her girlfriend, stating that she had told the applicant she was a lesbian. The Crown said this was powerful evidence corroborating C2’s version of what she had said about her sexuality.
165. The fleeting reference in the Crown’s address did not fill in the essential premises and reasoning that were missing from any attempt to make a Birks comment by these two passages of questioning. No such comment or invitation was made in terms in the address. The strong corroboration provided by C2’s text message was the only basis upon which the Crown submitted the jury should prefer her evidence about what she told the applicant. The two impugned passages of cross-examination on this subject were left as no more than an apparently pointless criticism of defence counsel for omitting details from his questions to the complainant.
166. As the trial judge gave no explanation of reasoning towards a Birks comment and said nothing about defence counsel’s failure to put to C2 that she told the applicant she was bisexual, the inefficacy and neutrality of the Crown’s cross-examination and address on this subject was unaltered by the summing up.
167. In my view the second and third impugned passages of cross-examination involved no prejudice to the applicant.

Fourth and fifth impugned passages of cross-examination – counts 9-11

168. The fourth impugned passage of cross-examination concerned the accused’s evidence in answer to the prosecutor that C2 had tongue-kissed him at The Little Guy, as follows:

Q. It was clear to you I want to suggest pretty quickly that what she was interested in doing was dancing to the band?
A. And kissing me and putting her tongue in my mouth.
Q. Did you hear it put to [C2] at any stage of this trial that she put her tongue in your mouth?
A. No it has not been put to her.
Q. No. Not once. In relation to that kiss Mr Hofer, I want to suggest to you that what in fact happened, the first kiss that I think is about seven seconds duration, is that you grab [C2] and draw her towards you?
A. That, anything be correct [sic].

169. Related to this is the fifth passage, five pages on:

Q. [...] Sir, [C2] showed no sign, I want to suggest to you, apart from a kiss or kisses that you instigated much earlier in the night, she gave no sign of having any sexual interest in you, did she?
A. I would consider that the kiss where she put her tongue in my mouth was
quite sexual.
Q. This is the kiss, the tongue kiss that was never, not once, put to [C2] for her to have the opportunity to comment on, correct?
A. Correct.

170. These two passages, whether considered alone or together, were not prejudicial to the applicant for the same primary reason as that given in relation to the first three impugned passages. The questioning went no further than the first premise of a Birks comment. It did not convey explicitly that the jury should infer that the applicant had made up the tongue kiss after C2 had been questioned. Nor would such an inference have been obvious to the jury given the lack of any argument in the addresses or any direction in the summing up as to why such a conclusion might follow.
171. Again, this line of questioning would have conveyed to the jury no more than a collateral and inconsequential criticism of a lack of thoroughness in the defence cross-examination of C2.

Sixth impugned passage of cross-examination

172. The sixth impugned passage concerned the applicant’s evidence in chief that C2 had performed oral sex on him (emphasis added):

Q. Mr Hofer, you gave evidence that after [C2] received or made this phone call, you said something to her along the lines of, you talking to some guy does not make me hard, and you then asked her if she would like to perform oral sex on you. Do you remember giving that evidence?
A. It was words similar to that, that is correct.
Q. You told the jury that [C2] agreed, and in fact performed oral sex on you?
A. Yeah, she appeared to be quite experienced about doing it too.
Q. Mr Hofer, that last little comment was again nothing more than a free kick by you to try to denigrate [C2], wasn’t it?
A. There’s nothing denigrating about that, it’s the fact - or as I perceived it.
Q. Can I put this to you, sir. You didn’t hear at any stage during [C2’s] evidence a suggestion put to [C2] that she performed oral sex on you, did you?
A. And have - for previously my barrister may have been I won’t say neglectful but we only had the - I only had the opportunity to brief my barrister on two occasions, one was for about half an hour, the second occasion was again for may be half an hour to an hour, where I’m sure you had much more time than one and a half hours to prepare.
Q. You didn’t hear it put to [C2] at any point, did you?
A. No, that is not correct. I asked her the question.
Q. You asked her a question? I’m talking about when [C2] was in the witness box.
A. No, the answer it was not put to [C2]--
Q. The question was never put to her, was it?
A. (No verbal reply)
Q. She was never given an opportunity to comment on this suggestion you make now that she agreed to perform oral sex on you. That was never put to her for her comment, was it?
A. Correct.

173. Within a page of transcript the Crown retracted and apologised for this cross-examination, as follows:

Q. [Trial counsel] has just pointed out to me that some of my earlier questions were unfair to you or unfair to - in any event, that in fact [trial counsel] did put to [C2] that she performed oral sex on you, so I apologise for that.

174. Apart from any other consideration, this retraction and apology appears to have neutralised any possibly prejudicial effect of the sixth impugned passage of cross-examination. Further, when the applicant mistakenly took at face value the Crown’s suggestion that defence counsel had not put to C2 that she performed oral sex on him, he provided an explanation, namely, lack of adequate opportunity for himself and his barrister to prepare for trial (the answer highlighted in bold). This was not challenged by the Crown, let alone rebutted, either at this point in the questioning or anywhere else. When the prosecutor accepted that he had proceeded upon a false premise and apologised, the whole matter came to nothing. If there was any effect it was to make the applicant appear rational, reasonable and overly willing to make a concession.
175. As it happens, the transcript shows that while it was certainly put to C2 that the applicant asked her to perform fellatio on him and that she agreed, it is not entirely clear that defence counsel’s questions of C2 invited her to accept that she carried out the act. That does not diminish the neutralisation of the sixth impugned passage, in the manner referred to above. The subject was never returned to in address or in summing up.

Seventh impugned passage of cross-examination – counts 9-11

176. The Crown prosecutor reminded the applicant that he said in chief that he had asked C2 whether it was all right for him to ejaculate inside her. There followed the seventh impugned passage of cross-examination, in these questions and answers (emphasis added):

Q. Did you ever hear at any stage of the cross-examination of [C2] a suggestion that you said to her, is it okay for me to come inside of you, and she said yes?
A. That was not put to her by my barrister and again it should have been, and in front of my barrister is notes that I wrote on--
HIS HONOUR
Q. The question you were asked was did you ever hear a suggestion in the [course] of [C2’s] evidence that something occurred, the answer presumably is yes or no, it’s not calling for some volunteering of additional information.
A. Okay, just a yes or no answer. The answer is no.
CROWN PROSECUTOR
Q. No, you didn’t hear that?
A. Correct.
Q. And the suggestion that you just mentioned again you believe we both had an orgasm, did you ever hear that suggestion put to [C2] for her comment?
A. No.
Q. [...] But you didn’t hear any suggestion put to [C2] for her comment that she agreed that you could come inside of her, no?
A. I believe that’s already been answered.
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?
A. No, that’s not correct.

177. This was another incomplete cross-examination on only the first premise of a Birks comment. The applicant’s first answer (in bold) deflected the questioning into another criticism of his counsel for oversight. The Crown did not during the questioning or in address challenge the applicant’s imputation of blame to his barrister. The concluding suggestion that the applicant was fabricating had no logical force without both an explanation to the jury that counsel was obliged to put to C2 any matters upon which the applicant had instructed him and a rebuttal of the applicant’s attribution of fault to counsel.
178. The Crown’s address made no reference at all to this seventh impugned passage. It caused no prejudice to the applicant and gave rise to no miscarriage of justice.

Eighth impugned passage of cross-examination – counts 9-11

179. The eighth impugned passage occurred in response to the applicant’s denial that he said to C2, soon after she entered his bedroom, “Let’s do it” or words to that effect. The relevant evidence was as follows (emphasis added):

A. Those - the words in [C2’s] statement are not words that I would use with any woman.
Q. To what part of that did you object, what part of that quote? Why wouldn’t you use words like that?
A. Can you read the full phrase from--
Q. [C2] says that you got inside the room and you said words to the effect of, okay, let’s do it.
A. I don’t use the words, let’s do it. It’s like ..(not transcribable).. - almost like ..(not transcribable).. phrase, it’s not part of my normal, natural language. May be people that they - police have previously prosecuted might use that language. Well, I’m suggesting--
Q. Do you consider it coarse, do you?
A. No. What my suggestion is, and I’m not talking about the gentleman from the Police Force who’s in the Court at the moment, but I believe there was substantial coaching by the police officer involved with [C2’s] statement and with [C1’s] statement.
Q. Okay. Mr Hofer, did you hear put at any time in this trial a suggestion to the officer in charge that he had coached either [C2] or [C1]? Did you hear that or not?
A. Can I ask if this gentleman is the officer in charge? Because someone else told me that they were the officer in charge.
HIS HONOUR
Q. You are simply being asked whether you hear something in court or not, Mr Hofer. Please listen carefully to the questions and do your best to answer the question you’re being asked, not some other question.
A. Could you repeat that?
CROWN PROSECUTOR
Q. You’ve told the jury that you think that there was coaching of [C1] and [C2], is that right?
A. Correct.
Q. And you say that was done by police officers?
A. Correct.
Q. Did you hear a single question put to any police officer in this trial that they had coached either [C2] or [C1]?
A. The police officers that were involved in the statements have not been present in court.
Q. Mr Hofer, you know that it was open to you to insist on the presence in the witness box of any police officer who was involved in this investigation, right, and you didn’t require any police officer to get into the witness box and answer allegations that they’d coached witnesses, did you?
A. I have had discussions with my legal team and they suggested--
Q. Don’t tell us what you discussed with your legal team, Mr Hofer. Will you address that question?
A. Can you repeat the question, please?
Q. You have had the brief of evidence, that is the entire evidence available to the Crown in this matter,--
A. Yes.
Q. --and it was served on you a long time ago, right?
A. Correct.
Q. You were aware at all times of the identity of every single police officer who was involved in this investigation, right?
A. Yes.
Q. It was open to you to require the Crown to get any police officer here for cross-examination that you required, right? You understood that, didn’t you?
A. Yes I do.
Q. You did not ask for a single police officer to come here and answer these allegations you are now making that they coached either [C2] or [C1] did you?
A. I did say that to my legal team and they thought it best not to and I’m reserving my right to take the New South Wales police force on in the Supreme Court.
Q. So, not a single question was put to either the officer, the second in charge, Detective Sergeant Franklin, to the effect that he had ever coached either [C1] or [C2] right?
A. He was above the officer in charge and I found him to be of good character when he arrested me.
Q. You didn’t hear a single question put to either [C2] or [C1] that they had been coached by any police officers?
A. No but they give evidence that suggests that they have been change - statements.
Q. Mr Hofer did you hear a single question at any stage in this trial put to any witness that there had been coaching of [C2] or [C1]?
A. No

180. Once again only the first premise of a Birks comment was touched upon and the subject of defence counsel not having cross-examined police officers about coaching witnesses was not returned to or elaborated in the Crown’s address or in the summing up. Further, the Crown left unchallenged the applicant’s answer (in bold) that his legal team thought it “best not to” require the relevant police to attend for cross-examination on his allegation of witness coaching and that he reserved his right “to take the New South Wales police force on in the Supreme Court” over the matter. This incomplete cross-examination, on a collateral topic, was of no consequence and did not create prejudice.

Ninth impugned passage of cross-examination

181. The ninth impugned passage arose from an error on the part of the prosecutor. It had been C2’s evidence that the person with whom she was in phone contact both while the applicant was sexually assaulting her and again later when she was riding the 433 bus to the city was a young man she had been seeing but who was not her “official boyfriend”. There was no question of any of this having to be put to C2 by defence counsel because it came from the complainant herself. The prosecutor’s error in questioning the applicant upon a supposed failure of his counsel to cross-examine C2 about the matter was pointed out by the applicant during the passage of impugned questioning, in the answer emphasised below. Any potential prejudicial effect was thereby immediately dispelled.
182. The ninth passage was as follows:

Q. That’s so Mr Hofer but 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?
A. Around five to ten minutes after the bus turned - pulled away at which time she had been speaking with the person who was her non official boyfriend who had heard her breathing very heavily whilst we were having consensual sex.
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 it, 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?
A. I believe some things that I have stated can be proven.
Q. Not once did anybody put to [C2] this suggestion that she was on the phone to her - what did you call him, unofficial boyfriend?
A. Well--
Q. Can you answer that question, did you hear it put or not?
A. From her own words--
Q. Mr Hofer. I am sorry Mr Hofer, did you hear it put or not?
A. From her own words she stated that he was not her official boyfriend but she was indicating that there had been an effectual relationship, so it did not need to be - that did not need to be put to her by my barrister.
Q. Mr Hofer, not once was that put to [C2] for her comment.
A. A person’s sexual history cannot be asked of them in court.

183. If anything was implied to the jury by this passage it would only have been that the applicant responded to the Crown reasonably, with a sensible answer correcting the prosecutor’s misapprehension. In this context, the question “Are you just making things up as you go along Mr Hofer?” was random, not logically connected to the surrounding questions and not given any force by them. The matter was not referred to again in address or in summing up. This cross-examination was neither prejudicial nor significant.

Combined effect of the passages

184. All the impugned passages in the present case may be contrasted with the cross-examination that was found impermissible in Picker v R [2002] NSWCCA 78, set out in the judgment of Smart AJ in that case at [40]. The accused in that case was taxed with four details of his encounter with the complainant, none of which had been put to her in cross-examination. The four matters were raised by the prosecutor one after the other and in relation to each a question was asked: “That’s something you’ve just made up isn’t it?” or “And that’s because she never said such a thing to you at all?” or “Because you’ve just made them up haven’t you?” At [42] Smart AJ held:

The gist of the cross-examination was unmistakable, namely because the appellant’s counsel had not questioned the complainant about the specified matters the appellant was telling lies. He had made up his evidence on these points.

185. There was no such unmistakable gist of the cross-examination of the applicant. In the present case there was not an insistently repeated suggestion of recent invention as seen in Picker v R. Another contrast with Picker v R is that the offending cross-examination in that case was followed by an extravagant Crown address, expressed in “florid” and “caustic” terms, emphasising fabrication with respect to the aspects of the accused’s evidence that had not been put to the complainant. The address in the present case was restrained.
186. The applicant’s counsel in this Court submitted:

[The applicant] was cross-examined persistently and repetitively about the perceived non-compliance of his counsel with Browne v Dunn.
[T]his line of cross-examination [...] was a sustained attack and it forms [a if not the] major aspect of the prosecution attack on the credibility of the accused.
[T]his was a very protracted and meaningful attack on his credibility and that uncorrected false impression that the accused had made up these aspects of his evidence in circumstances where he clearly [had] provided his lawyers with instructions well in advance of trial was apt to result in a miscarriage of justice in this case.

187. I do not accept these submissions. They are made from the point of view of an experienced criminal court advocate with full appreciation of the rule of professional practice in Browne v Dunn. The submissions derive from counsel’s experience that if purported details of a sexual assault are not put in cross-examination of the complainant and if they first emerge in the accused’s evidence, they are likely to be a departure from the instructions upon which the cross-examination took place. Similar knowledge and experience of trial procedure is a likely explanation of why the Crown’s cross-examination in these passages was so incomplete and ineffectual. The prosecutor may well have thought that he was exposing lack of credit in the accused. Both Crown counsel at the trial and the applicant’s counsel in this Court have made an unfounded assumption about how the jury would have perceived the questioning in the absence of instruction about the fundamental premises and path of reasoning that are involved in a Birks comment upon credit.
188. The jury were never told why, if at all, it mattered that defence counsel had failed to ask the complainants about a handful of details of which the applicant later gave evidence. Birks reasoning is not intuitive and an implication of recent invention would not have suggested itself to the jury from the nine impugned passages. The sum of these insignificant lines of cross-examination of the applicant is, still, insignificant. I would reject ground 2.

The proviso

189. If I am an error in concluding that there was no prejudice to the applicant from the questioning impugned under ground 2 I would nevertheless apply the proviso to s 6(1) of the Criminal Appeal Act and dismiss the appeal. It is a necessary condition of taking this course that the Court should form its own affirmative conclusion, upon the whole of the evidence at trial and taking into account the jury’s verdict, that guilt was proved beyond reasonable doubt: Weiss v The Queen (2005) 224 CLR 300; [2005] HCA 81. I have no hesitation in reaching that conclusion.
190. The first element of each offence, the commission of an act of sexual intercourse, was admitted for all counts upon which the applicant was convicted except counts 6 and 7. Those were two instances of penile-vaginal penetration of C1. The applicant denied that there had been any intercourse of this nature throughout the episode with C1 but the jury found these two counts proved. They evidently felt a reasonable doubt about the last alleged occasion of penile penetration because they acquitted on count 8. C1’s evidence that penile penetration had occurred was clear and was unshaken in cross-examination. She was too intoxicated to resist but sufficiently conscious to know what was being done to her and to feel and express great distress about it immediately after. No doubt the jury considered that a woman of 23 would know whether she was penetrated by a 130 kg virtual stranger during an episode such as this, even in the impaired state of consciousness she described. While C1 was highly credible, the applicant lacked credibility, largely as a result of his inherently implausible denial of knowledge that the complainants were not consenting to any sexual acts.
191. The second element of each offence, lack of consent, was not in dispute on defence counsel’s address and was established beyond reasonable doubt by the evidence of C1 and C2. Both were thoroughly corroborated by contemporaneous text messages and immediate complaint. The Crown also established beyond reasonable doubt that the applicant knew the complainants were not consenting, or at the least that he was reckless as to their non-consent. The applicant’s evidence that each complainant expressly agreed to some of his proposals for intercourse and that in some respects they took the initiative was compellingly contradicted by C1 and C2 and was irreconcilable with the manifest and extreme distress of each of them in the immediate aftermath. 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 applicant 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.
192. Turning to the question whether a significant miscarriage of justice actually occurred, I do not consider that the Crown’s questioning, if it was prejudicial at all, could be said to have gone to the root of the trial. If the jury took from these passages an impermissible and unjustified invitation to infer recent invention, this could only have been in relation to one or more of the details upon which the impugned questioning was conducted. It is true that there was no caution from the judge that failure to put these points to the complainants may have been through counsel’s fault rather than because the applicant had given no instruction on the matters and fabricated them afterwards. However the imputation of blame to counsel was positively advanced by the applicant himself in relation to three of the impugned passages and, in relation to another, the applicant correctly identified that the relevant matter had come from the Crown’s witnesses and did not have to be put to her.
193. The four passages in which the Crown’s criticism of “failure to put” was adequately answered by the accused himself, without challenge, were as follows:
     • The sixth passage, concerning C2 having performed oral sex on the applicant: see [172] above. It has been earlier noted that the Crown withdrew the suggestion that this matter had not been put to the complainant.
     • The seventh passage, concerning C2 having agreed that the applicant could ejaculate inside her: see [176] above.
     • The eighth passage, concerning failure to cross-examine police witnesses about coaching the complainants: see [179] above.
     • The ninth passage, concerning C2’s reference to her “unofficial boyfriend”: see [182] above.
194. Further, as neither the Crown nor the trial judge suggested to the jury the second or third premises of a Birks comment, nor invited them to adopt the Birks path of reasoning, no caution about the dangers of and alternatives to an inference of recent invention was necessary.
195. In Weiss v The Queen the High Court said (at [43]):

But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court’s assessment of the whole record of trial.

196. If the impugned cross-examination was impermissible and to some degree prejudicial, in my opinion it would, or at least should, have had no significance for the jury. Certainly if there was such an error it was not one that involved any significant denial of procedural fairness or that constituted a serious breach of the presuppositions of the trial. The Crown case was of such strength on the central issue of whether the applicant knew the complainants did not consent that one may be confident there was no substantial miscarriage of justice in the verdicts returned.
197. This conclusion is reinforced with respect to some of the passages by the unimportance of the underlying subject matter. For example, the topic of the second and third impugned passages, whether or not C2 told the applicant early in the evening that she was a lesbian, was inconsequential to the issue of knowledge of non-consent. The possibility that the applicant might have been disabused of a perception of consent as a result of C2 declaring that she was a lesbian could have had some relevance if the applicant had claimed that his belief in her consent came only from subtle indicators of physical attraction over the course of the evening. But what the applicant’s counsel put to C2 about her behaviour in the bedroom and the evidence the applicant then gave on that subject rendered subtle indications from earlier in the evening, either for or against physical interest, immaterial. As earlier recounted, the applicant’s evidence was that in the bedroom C2 was not only willing but eager: she undressed herself, said yes to his offer to perform oral sex on her and allowed it, “crashed above me, grabbed the base of my penis and inserted ... [it] into her vagina”, said yes to his invitation that she perform oral sex on him and then performed it and, when invited to engage in penile vaginal sex from another position, assumed the position without demur.
198. It is true that in address defence counsel gave considerable attention to the behaviour of C2 at the bars and to what the applicant might have inferred regarding her interest in him. But the jury were confronted with the difference between the applicant’s description of C2 ravishing him in his bedroom and, on the other hand, her evidence that this 130 kg man held her down on the bed while he removed her lower clothing against her protests and then forced himself upon her. Whether or not the jury would feel a reasonable doubt about the applicant knowing that C2 did not consent turned upon their assessment of these two starkly conflicting accounts. They must have accepted C2’s narrative of the bedroom scene and felt that the applicant’s account did not give rise to a reasonable doubt about it. Acting reasonably and in accordance with the trial judge’s directions their conclusion on this evidentiary contest could not sensibly have been affected by any view of whether the applicant was truthful in saying that C2 told him earlier in the evening that she was bisexual rather than lesbian.
199. Another example of inconsequential subject matter is the seventh impugned passage. The question whether he did or did not ask to ejaculate inside C2 and whether either or both of them had an orgasm, in each case after he had commenced penile-vaginal penetration, could have little impact upon the critical question of whether the applicant knew that C2 did not consent.
200. For illustrative purposes one may contrast the relative immateriality of the matters that counsel did not put to the complainants in the present case with the basis of the prejudicial cross-examination of the accused in Picker v R. In that case the matters that had not been put were central to the issue of consent, being the complainant’s conduct toward the accused and her conversation with him, in her home immediately before sexual intercourse took place. They were the very matters from which the accused said that he came to an understanding that he was invited to engage in sex, just before it occurred. Pointed cross-examination about the failure of counsel to have suggest these details to the complainant when she was in the witness box was incomparably more significant than any of the matters taken up with this applicant in the impugned passages.
201. If, contrary to my view, ground 2 should be upheld, I would apply the proviso and dismiss the appeal so far as it rests upon this ground.

Birks comments by the Crown, in general

202. The decision whether to cross-examine an accused upon the failure of defence counsel to put some matter to a Crown witness is always thrust upon the prosecutor with very little opportunity to reflect upon whether such questioning should be pursued. If the accused first gives evidence of the relevant matter during examination in chief then the decision must be made by the time cross-examination begins. If a relevant matter is first asserted under cross-examination then the decision must be made while the prosecutor is on his feet. This time pressure perhaps explains why so many appeals have been generated as a result of the Crown ill-advisedly undertaking cross-examination of this kind, notwithstanding the numerous cautions issued by this and other intermediate appellate courts.
203. Upon hearing in the accused’s evidence an assertion that was not put to the Crown’s witness, it may in the past have been a reflex of prosecutors to cross-examine towards a Birks comment. By now, 20 years after the decision in R v Birks, it should be an entrenched practice to refrain from doing so until the foundations and implications of such questioning have been carefully considered, possibly during an adjournment or in discussion in the absence of the jury.
204. This ground has been gone over so often at intermediate appellate level that, at the defence end of the bar table, counsel should by now be well aware that if the prosecutor does commence to cross-examine the accused regarding failure to put some matter to a Crown witness, action should be taken to avert unfair prejudice. If the fault has really been of counsel, that may be intimated to the prosecutor. If he or she accepts the explanation it would be expected that the implication of recent invention would be expressly disavowed. If it is not accepted by the Crown that fault lay with a defence legal representative, the incidence of fault may nevertheless be proved by the accused calling his or her solicitor to establish what the instructions were: R v Birks at 681E. If the accused does not waive privilege in order to reveal the terms of his or her instructions, the Crown will not have a foundation for asserting recent invention: Llewellyn v R at [138(c)]. If the questioning has progressed to a point where a clear implication of recent invention has arisen, defence counsel would need to seek a direction from the trial judge to explain that the failure to put the relevant matter may have arisen from circumstances other than fabrication and that that the jury should not draw the inference.
205. Whilst appeals on this basis would be averted if the Crown should resolve never to cross-examine or to address juries towards a Birks comment, that would remove the discipline upon defence counsel to put their clients’ cases fully to Crown witnesses. It would give free rein to accused persons to fabricate matters that Crown witnesses might have been able to refute. Subject to constraints upon the Crown not splitting its case, the protection against such developments would lie in trial judges granting leave to the Crown, where necessary, to recall in reply any witness who had not had an opportunity to respond to some matter raised for the first time in the accused’s evidence: MWJ v The Queen at [40] (Gummow, Kirby and Callinan JJ)

Ground 3 – incompetence of counsel

206. Ground 3 was argued on the basis that defence counsel should have pressed his objection when the first impugned passage of cross-examination occurred and called evidence from his solicitor to establish that the accused had given instructions upon matters that counsel failed to put to the complainants. Evidence was adduced on the appeal to establish the matters about which defence counsel had instructions from his client. It was submitted that counsel should have objected to the Crown making any Birks comment in address and should have asked for a direction to protect the applicant against an unjustifiable inference of recent invention.
207. I consider that none of these bases for suggesting dereliction of counsel’s duties has been established because the cross-examination was ineffective and insignificant, for the reasons given in relation to ground 2. I would reject ground 3.
208. I would join in the orders proposed by Fullerton J.

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