High Court drops sex offender's appeal of 'suggestive' cross-examination

The decision clarifies the application of a "substantial miscarriage of justice"

High Court drops sex offender's appeal of 'suggestive' cross-examination

The High Court recently dismissed a sex offender’s appeal which alleged the asking of “impermissible and prejudicial” questions by the Crown’s prosecutor.

The decision clarifies the application of a “substantial miscarriage of justice.”

Thomas Hofer had been convicted of eight counts of “having sexual intercourse without consent.” The crimes were committed against two complainants.

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The complainants did not know one another, and both had contacted Hofer because he posted an advertisement which claimed he was looking for a roommate. The acts were committed separately, with both complainants alleging that Hofer “plied them with alcohol.”

Hofer’s credibility and his belief the acts were consensual were key issues at trial. He said there was consent in both instances.

According to court records, aspects of Hofer’s evidence which contradicted the complainants’ claims were not presented to them by the defence counsel for comment during his cross-examination.

On each occasion, the prosecutor asked Hofer to acknowledge the omission. In two of these instances, Hofer claimed that the prosecutor made it seem as if aspects of the evidence were “of recent invention.” Hofer submitted that the prosecutor suggested that he was “just making things up” as he “goes along.”

Hofer’s defence counsel did not pursue objections to the prosecutor’s suggestions, and the trial judge did not direct the jury as to their use.

Following his conviction, Hofer he appealed to the CCA. The majority of the court considered that “a miscarriage will not inevitably follow where there has been no basis for a cross-examination of this kind,” and that “consideration must be given to its effect on the trial.”

Subsequently, Hofer brought the matter to the High Court, which upheld the CCA’s ruling.

The court said that the prosecutor’s questioning was “highly prejudicial” because without any directions from the trial judge, “there was a real chance that the jury may have assumed [Hofer] had recently made up his story.”

However, the court pointed out that Hofer’s evidence was “so glaringly improbable” that it was “incapable of belief.” Hence, for this reason, “it could not have given rise to a reasonable doubt as to his guilt.”

The court also ruled that the Crown’s “impermissible contention of recent invention” was “of little significance” in determining the real issue in the trial. The court said that there was “no failure of process” that involved “a serious breach.”

The judgment was handed down on 10 November.


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