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[2026] NSWCCA 85
Court of Criminal Appeal (NSW)
2026-06-18
N Adams CJ at CL; Dhanji J; Roberts J
Original judgment source is linked above.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Douglas v R [2026] NSWCCA 85
Hearing dates: 10 June 2026
Date of orders: 10 June 2026
Decision date: 18 June 2026
Before: N Adams CJ at CL; Dhanji J; Roberts J
Decision: (1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the applicant’s convictions.
(4) Order a new trial of the applicant.
(5) Stand the matter over to the District Court Arraignment List on 16 June 2026 at 10:00am.
Catchwords: CRIME — appeals — appeal against conviction — conduct of cross-examination of an accused — domestic violence offences — where prosecutor suggested that the accused’s evidence was fabricated because matters were not put to complainant by defence counsel in cross-examination — where defence counsel did not object to the questioning — principles in Hofer v The Queen (2021) 274 CLR 351 — error conceded — appeal allowed
Legislation Cited: Criminal Appeal Act 1912 (NSW), ss 5(1), 6
Criminal Procedure Act 1986 (NSW), s 294CB
Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 4.15
Cases Cited: Brawn v The King [2025] HCA 20; 99 ALJR 872
Browne v Dunn (1893) 6 R 67
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36
Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66
R v Birks (1990) 19 NSWLR 677
R v Manunta (1989) 54 SASR 17
Principal judgment
Parties: Paul Douglas (a pseudonym) (Applicant)
The Crown (Respondent)
Representation: Counsel:
Mr S Odgers SC (Applicant)
Ms S Lind (Respondent)
Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (NSW) (Respondent)
File Number(s): 2022/00070631; 2022/00070649
Publication restriction: Pursuant to s 578A Crimes Act 1900 (NSW) and s 15A Children (Criminal Proceedings) Act 1987 (NSW), there is to be no publication of any matter which is likely to lead to the identification of the complainant, the complainant’s child or the applicant’s child.
[This headnote is not to be read as part of the judgment]
On 26 September 2024, the applicant was found guilty by a jury in the District Court of seventeen domestic violence offences committed against two of his former partners.
The applicant gave evidence at trial. During his cross-examination, the Crown Prosecutor suggested that aspects of his evidence were recently fabricated because defence counsel had not put various matters to one of the complainants when cross-examining her. There was no objection to this cross-examination by defence counsel. While the trial judge directed the jury that there are various explanations for why certain matters are not put to a witness, his Honour described the line of questioning as “perfectly legitimate” and did not warn the jury about drawing an inference adverse to the applicant’s credibility.
The applicant sought leave to appeal against his conviction on the grounds that a miscarriage of justice resulted from this cross-examination and from the trial judge’s directions in respect of it. The Crown conceded that the appeal should be allowed in line with the principles in Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 (“Hofer”).
The Court (N Adams CJ at CL, Dhanji and Roberts JJ) held, granting leave to appeal and allowing the appeal:
Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36, applied.
THE COURT: The applicant stood trial in the District Court before a jury and Judge Sutherland SC between 27 August and 26 September 2024. He was charged on an indictment containing 22 counts of domestic violence offences against his former wife KD between 2000 and 2019 and a further seven domestic violence offences against his subsequent partner RC between 2020 and 2021. He will be known for the purposes of this judgment by the pseudonym of “Mr Douglas”.
On 26 September 2024, the jury returned verdicts of guilty to 17 of the counts. The applicant was acquitted of the remaining 11 counts. On 6 March 2025, the applicant was sentenced to an aggregate term of 16 years’ imprisonment with a non-parole period of 12 years, commencing on 13 July 2024.
By notice of appeal filed on 24 March 2026, the applicant appeals against his conviction. The applicant relies on the following two grounds of appeal (a third ground having been abandoned prior to the hearing of the appeal):
Ground 1: A miscarriage of justice resulted from cross-examination of the applicant by the Crown Prosecutor suggesting that the appellant had “made up” evidence of matters that were not put to a complainant by defence counsel.
Ground 2: A miscarriage of justice resulted from what the trial judge said, and did not say, to the jury regarding the suggestions of the Crown Prosecutor that the applicant had “made up” evidence of matters that were not put to a complainant by defence counsel.
Leave was required to bring this appeal because the grounds of appeal did not involve a question of law alone: s 5(1) of the Criminal Appeal Act 1912 (NSW). Leave was also required in respect of ground 2 because trial counsel did not seek a direction in those terms: r 4.15 of the Supreme Court (Criminal Appeal) Rules 2021 (NSW).
Prior to the hearing of the appeal on 10 June 2026, the Crown conceded in written submissions that, consistent with the principles derived from the decision of the High Court in Hofer v The Queen (2021) 274 CLR 351; [2021] HCA 36 (“Hofer”), it would be open to this Court to find that grounds 1 and 2 were made out and to allow the appeal. That concession was properly made. At the conclusion of brief argument at the hearing of the appeal, the Court made the following orders:
1. Grant leave to appeal.
2. Allow the appeal.
3. Quash the applicant’s convictions.
4. Order a new trial of the applicant.
5. Stand the matter over to the District Court Arraignment List on 16 June 2026 at 10:00am.
6. Reasons reserved.
This appeal raises squarely the failure of the Crown Prosecutor, defence counsel and the trial judge to adhere to the principles set out by the High Court in Hofer.
In Hofer, the High Court considered the propriety of a prosecutor cross-examining an accused about defence counsel’s failure to put particular matters to a prosecution witness (in purported breach of the rule in Browne v Dunn (1893) 6 R 67 at 70-71) to suggest that the accused’s evidence was a recent invention. Such questioning is likely to depart from the “standards of a trial to which an accused is entitled and the standards of fairness which must attend it” (at [42]). In Hofer, the result of such questioning was a miscarriage of justice.
It is helpful to extract the reasoning of Kiefel CJ, Keane and Gleeson JJ at [32]-[37] in full as follows:
[32] The reasoning behind a decision to cross-examine the accused in pursuit of this purpose may readily be inferred. It commences with the fact that a matter is not put by defence counsel; it assumes that the reason for the omission is that counsel was unaware of the matter and that counsel was unaware because the accused had not given an account of it in his or her instructions. The conclusion reached is that the accused must now be making the evidence up.
[33] In R v Manunta, King CJ observed that an examination of an accused person which proceeds by reference to there being but one reason why a matter has not been put to a witness is “fraught with peril”. As his Honour there observed, there may be many explanations for the omission which do not reflect upon the credibility of the accused. His Honour gave as examples defence counsel misunderstanding the accused’s instructions or where forensic pressures may have resulted in looseness in the framing of questions. To these may be added the possibility that defence counsel has chosen not to advance certain matters upon which he or she had instructions because they were unlikely to assist the defence.
[34] Where there remains a number of possible explanations as to why a matter was not put to a witness, there is no proper basis for a line of questioning directed to impugning the credit of an accused. Except in the clearest of cases, where there are clear indications of recent invention, an accused person should not be subjected to this kind of questioning. The potential for prejudice to an accused is obvious.
[35] Proceeding on the basis of a mere assumption as to lack of instructions is likely to be productive of further unfairness in the course of the cross-examination. The assumption will inevitably lead to impermissible questions of the accused, put expressly or arising implicitly, as to the actual instructions he or she gave. An accused person faced with questioning of this kind is likely to feel obliged to attempt to explain by reference to the instructions he or she in fact gave when in reality the accused carries no such onus. Questioning of this kind may result in the need for counsel or the solicitor for the defence having to disclose those instructions. This is a circumstance which should not arise.
[36] In most cases, the cross-examination will have a dual purpose. It will be concerned with identifying unfairness to a Crown witness as well as seeking to have the accused’s evidence disbelieved. Where it has the sole purpose of impugning the credit of the accused it will be necessary for leave to be sought from the trial judge. The discussion which will inevitably take place on such an application will point up the risks associated with the course proposed.
[37] A trial judge should be alert to the problems associated with cross-examination. They should be raised with counsel at an early point. Where the cross-examination has occurred, it will be necessary for the trial judge to warn the jury about any assumption made by the cross-examiner, to draw attention to the possible reasons why the matter has not been put and to direct the jury as to whether any inferences are available.
(Emphasis added; footnotes omitted.)
It is legitimate, of course, to draw appropriate conclusions from counsel’s failure to put in cross-examination some matter to which his client or his witnesses subsequently depose. It is a process of reasoning, however, which is fraught with peril and should therefore be used only with much caution and circumspection. There may be many explanations of the omission which do not reflect upon the credibility of the witnesses. Counsel may have misunderstood his instructions. The witnesses may not have been fully co-operative in providing statements. Forensic pressures may have resulted in looseness or inexactitude in the framing of questions. The matter might simply have been overlooked. I think that where the possibility of drawing an adverse inference is left to the jury, the jury should be assisted, generally speaking, by some reference to the sort of factors which I have mentioned.
The complainant KD gave evidence on 2 and 3 September 2024. She was in a relationship with the applicant from 1998. They have three children together: their son AD and twins MD (daughter) and ED (son), who gave evidence at the trial. MD gave evidence in the Crown case whereas AD and ED gave evidence in the applicant’s case.
The applicant was convicted on 10 of the 22 counts pertaining to the complainant KD: count 2 (common assault), count 10 (common assault), count 11 (attempt to choke with intent to commit sexual assault), count 12 (aggravated sexual assault), count 14 (aggravated sexual assault), count 15 (intimidation), count 19 (assault occasioning actual bodily harm), count 20 (intimidation), count 21 (intimidation) and count 22 (intimidation).
Agreed Facts were tendered as Exhibit 1 at trial. They contained admissions by the applicant that he had previously physically assaulted and intimidated KD on three identified occasions between 2007 and 2021. This resulted in a number of apprehended domestic violence orders (“ADVOs”) and breaches of those orders. This was relied upon as tendency evidence in the Crown case.
The applicant was convicted on all seven counts pertaining to the complainant RC (counts 23-29). RC gave evidence on 5 September 2024. She had previously made statements to police on 12 January and 21 July 2022 but at trial she denied that the applicant had committed any offences against her. She claimed to have no memory of what she told the police and that she was then suffering from paranoia and was “immensely” influenced by KD’s disclosures on Facebook that the applicant had subjected her to 23 years of domestic violence. RC denied fearing the applicant or remaining in a relationship with him.
The applicant was convicted on count 23 (assault occasioning actual bodily harm), count 24 (assault occasioning actual bodily harm), count 25 (intimidation), count 26 (common assault), count 27 (intimidation), count 28 (intentional suffocation) and count 29 (sexual assault).
The applicant gave evidence at trial. His electronically recorded interview with police on 27 February 2019 was also played (Exhibit 12). Apart from the admissions in the Agreed Facts the applicant denied that the alleged assaults occurred. His evidence and that of the defence witnesses sought to prove that KD was the aggressor and abusive partner in the relationship. Other witnesses called in the defence case also gave evidence that KD was verbally and physically abusive.
Given the contradiction between the applicant’s account and those of KD, and of RC as given to the police, his credit was a central issue in the trial.
Five aspects of the applicant’s cross-examination are impugned on appeal under grounds 1 and 2.
First, the applicant gave evidence in cross-examination that KD had called him a “Toothless cunt”, a “Dumb fuck”, and a “Fuckwit”, and had also told him he deserved to die and that she should run him over. He said she “100%” said such things regularly in front of their six-year-old son AD.
The Crown Prosecutor then put to the applicant that it was never suggested to KD in cross-examination that she had used this abusive language in front of AD as follows:
Q. It was never suggested to [KD] in cross-examination that she said things like that in front of [AD], was it?
A. Because I’m a little bit more in touch with my kids, I don’t want - I didn’t want my kids involved in this. In one word, my daughter now is facing losing her part in the Navy due to this matter. That doesn’t make me feel like a good father at all.
Secondly, in evidence-in-chief, the applicant said that KD “loved” throwing objects at him when he did not pick up after himself. When asked what objects were thrown, he said knives, socket wrenches or other tools, “two big salt and pepper shakers” on one occasion, a broom which went through the windscreen of his company ute, and a vase, which also went through the window.
It should be noted that it had earlier been put to KD in cross-examination that she “would throw objects” at the applicant, which she denied. It was also put to her that she threw pots and pans, ashtrays and a fan, which she denied. However, she did accept that she threw a vase at the applicant which smashed a window, which she said was to defend herself. It was not specifically put to KD that she had thrown knives, socket wrenches or salt and pepper shakers at the applicant.
In cross-examination, it was put to the applicant that it had not been suggested to KD that she had thrown knives and socket wrenches at him. The exchange was as follows:
Q. Now, in your evidence yesterday, you suggested that one of the things [KD] would do was throw knives and socket wrenches, and other tools, if you left them laying around the house?
A. Yeah, of course. I used to walk inside with a hard hat on my head when I got home from work. Just for a joke. Is it safe to come inside?
Q. Well, I suggest to you that it wasn’t suggested to [KD] in cross-examination that she threw knives and socket wrenches at you?
A. Well, I don’t know why it wasn’t. I haven’t had the chance - I don’t write statements. I don’t worry about it. I’ve always been told that. “Don’t worry, darling. I’ll be there to help you get out of this. Just agree.” “No worries.” I’m 25 years old. I love my kids. I love my family.
Q. I’m asking you about the evidence that you gave yesterday about having knives and socket wrenches thrown at you. That’s not something which your lawyer put to [KD] when she gave evidence earlier in this trial?
A. I’m not too sure. Like I said, I haven’t given a statement. I haven’t given no evidence. That’s why I’m here today.
Q. So you didn’t tell your lawyer about it so that he could put that to [KD]?
A. I’m not too sure. Maybe not.
Q. I suggest you didn*’t tell your lawyer about that because you just made it up when you were in the witness box yesterday?*
A. I just made it up?
Q. That’s what I’m suggesting, yes.
A. No, I think you’re completely wrong.
(Emphasis added.)
Q. Similarly, with this incident where you say you walked in the door and salt and pepper shakers were thrown at you, that wasn’t something that was put to [KD] when she gave evidence, was it?
A. I’m pretty sure she put it to evidence when she suggested I boarded up the windows, and I’m pretty sure I heard [KD] even agree to throwing a vase at me.
Q. That’s right. It was explored with [KD] whether she threw a vase and she agreed that--
A. Exactly right.
Q. --but it was never suggested to her that she threw salt and pepper shakers at you which went through the front window?
A. No, it wasn’t.
Q. And that’s because you never told the lawyer about it?
A. No, I didn’t.
Q. And that’s because it never happened and you just made it up in your evidence yesterday?
A. Totally disagree.
(Emphasis added.)
Thirdly, the applicant gave evidence that KD “tried running [AD] over at a school ground”. He explained that AD was on the bonnet of KD’s car and that there was a police “record” of the incident.
It had been put to KD in cross-examination that she had sent a text to AD which read, “If I catch you anywhere near your brother or sister at school, I will personally run you over and get out of the car and jump on your fucking head”. She denied this. AD had also given evidence that on one occasion his mother “hit [him] with the car” at school.
Again, it was put to the applicant that it was never put to KD that she had tried running over AD in her car:
Q. Now, you also suggested in your evidence yesterday, that [KD] tried running [AD] over at a schoolground?
A. Yes.
Q. That wasn’t put to [KD] either, was it?
A. That was put to my lawyer about three years ago, and it’s just it might have been missed. I’m pretty sure I probably come up with [AD] too.
*Q. I suggest it wasn’*t put to [KD] because you just made it up in your evidence yesterday?
A. I can give you Bennett Road Public School’s phone number. You can contact them. The police were called. It’s all on file. Of course, it happened, sir. I wouldn’t lie about that.
(Emphasis added.)
After this line of questioning, the Crown Prosecutor put to the applicant that his evidence of KD leaving him because she was seeing her boss had not been put to KD. Defence counsel objected to this question on the basis that he had not cross-examined KD about this matter because it was precluded by s 294CB Criminal Procedure Act 1986 (NSW) and in those circumstances, it was unfair to suggest this evidence was a recent invention. The trial judge upheld the objection and asked whether the jury should be directed that defence counsel was legally precluded from cross-examining KD on that topic. Defence counsel declined that course and requested that the question be withdrawn, which the Crown Prosecutor did.
Fourthly, in cross-examination, the applicant gave evidence that he had said to KD that he was “sexually assaulted twice by an uncle of mine” and she responded, “You deserved it”. The Crown Prosecutor then suggested that this was not put to KD as follows:
Q. [KD] was never asked about that thing you just told us about, was she?
A. About what?
Q. About you being sexually assaulted by an uncle and her saying you deserved it. That wasn’t put to her in cross-examination?
A. No, it wasn’t put to her, but yeah, I’ve got it in text messages if you’d like to see it.
Q. You’re just making this up as you go along, aren’t you?
A. If that’s how you feel, but no, I have no reason to make stuff up.
Q. Was that put to [KD] in her evidence, when she gave evidence in this trial, that she had control over all the money?
A. I don’t know, but she knows about that. She had the control of the money.
Q. Did you ever tell your lawyer about that, so he could ask [KD] about it?
A. I had to said that.
*Q. I suggest it wasn’*t put to [KD] because you just made it up just then?
A. Okay.
Q. Do you agree?
A. I disagree. I have no reason to lie to you. I’m the one up here.
(Emphasis added.)
Ladies and gentlemen, in the course of cross-examination, it’s perfectly legitimate for a cross-examiner, in this case the Crown, to explore matters which are volunteered by a witness, in this case [the applicant] himself. A legitimate line of questioning may be, “Well look, that wasn’t put to so-and-so.” The implication or the implied suggestion being that counsel hadn’t been given instructions about it, therefore perhaps what’s being suggested to the witness in relation to some of these answers is, “Look, you’re making it up on the run, putting it that way.”
Whether or not something was the subject of instructions or not, that is, advice to the lawyers, sometimes becomes an issue in the trial, other times it doesn’t. However, the proposition that because something wasn’t put, that therefore the conclusion is that counsel had not been told about it, may or may not be correct; it depends, in various circumstances. Something may not have been put in cross-examination because counsel didn’t know about it; that’s one possibility. Another reason that something may not be put is because it wouldn’t comply with the rules of evidence, or for some other particular reason that counsel had instructions but did not put the proposition, either because there was no need to, or there was a discussion about the law in relation to it.
In relation to [RC], we’ll deal with this in the fullness of time, and you will deal with it in the fullness of time, but we have a juxtaposition between what she told the police, and what she told you. She’s come to this Court and given an explanation, via the screen of course, that most of these things or many of these things did not happen. Now, what you make of all of that will ultimately be a matter for you, but in relation to the most recent suggestion that things were not put in cross-examination to [RC] we’ve had a discussion about it, and the Crown does not seek to pursue that line, and indeed withdraws that particular question or questions; is that correct, Mr Crown?
CROWN PROSECUTOR: That’s right, your Honour.
(Emphasis added.)
You might also recall there are a number of things which [the applicant] mentioned in his evidence which weren’t put in cross-examination to [KD], you might think that the reason they weren’t put was because they were made up while he was in the witness box. Now, all these examples are very good indicators that [the applicant] was not a truthful witness.
(Emphasis added.)
The defence closing address commenced after the Crown address. Defence counsel made no comment about the impugned cross-examination, nor were submissions made as to why the jury would accept the applicant’s evidence. Instead, counsel focused on aspects of KD’s evidence which were contradicted by other witnesses and her lack of complaint to police regarding certain matters when seeking an ADVO against the applicant. In relation to RC, defence counsel pointed to RC’s evidence under oath in court, her statutory declaration to the effect that nothing occurred, her mental illness and her evidence that she had been pressured by a caseworker and police.
The trial judge’s summing up commenced after the defence closing address. The jury were given a Liberato direction to the effect that they did not have to believe the accused was telling the truth in order for him to be entitled to a verdict of not guilty (Liberato v The Queen (1985) 159 CLR 507; [1985] HCA 66). The trial judge reminded the jury throughout the summing up of the applicant’s evidence as it pertained to each count and where it was consistent with other witnesses called in the case. The trial judge did not summarise the Crown Prosecutor’s arguments as to why the applicant’s evidence should be rejected and there was no reference to “recent invention”. No direction was given or sought in relation to the impugned questioning. However, the trial judge directed the jury to be cautious in drawing inferences and ensure before an inference is drawn that it be examined to “see whether there are other reasonable explanations for the various facts”.
The applicant relied on an affidavit of his defence counsel at trial, affirmed on 16 March 2026. Trial counsel explained that he did not object to the impugned aspects of the cross-examination because he believed that it was permissible and he was unaware at the time of the judgment of the High Court in Hofer*.* He believed that he had been instructed that KD threw objects at the applicant, but could not recall the precise nature of those instructions. As to the other matters, trial counsel stated that he had no recollection as to whether he received instructions that KD had hit AD with a car, that the applicant had once told KD that he had been sexually assaulted and she responded, “You deserved it”, or that KD exercised control over the family finances.
In his affidavit affirmed on 8 May 2026, the applicant’s solicitor attached a copy of the applicant’s instructions which included a reference to an incident where KD tried to run over AD in her car, and another incident where he told KD about something (the details of which were not noted) and she laughed at him and said he deserved it. Written information was also provided to the applicant’s solicitors by his cousin TD that KD “used financial abuse” over the applicant by controlling all of the money.
As the High Court recently confirmed in Brawn v The King [2025] HCA 20; 99 ALJR 872, an “error or irregularity” in a trial will only give rise to a miscarriage of justice if it is “material in the sense that the error or irregularity could realistically have affected the reasoning of the jury to its verdict” (at [3]). An example the Court gave of such an error or irregularity was improper cross-examination by a Crown Prosecutor, citing Hofer (in the footnote at [9]).
The applicant submitted and the Crown accepted that the errors in this case were material because the invitation to infer that the applicant had recently invented parts of his evidence, without an appropriate warning from the trial judge about such inferences, could realistically have affected the reasoning of the jury to the verdicts of guilty, occasioning a miscarriage of justice.
We accept the Crown submission that the following aspects of the manner in which the trial proceeded are relevant to the disposition of this appeal.
First, the five impugned portions of the applicant’s cross-examination set out above proceeded in the manner cautioned against by the High Court in Hofer. The Crown Prosecutor challenged the applicant about matters not put to KD, queried whether this was because he did not “tell [his] lawyers about that”, and then suggested that he had not told his lawyers because he had “just made it up”.
As was observed in Hofer at [33], there may be many explanations for a failure to put a matter to a witness which do not reflect upon the credibility of the accused. A possible explanation given by the applicant is when the relevant evidence related to “peripheral matters”. In such circumstances, it is quite plausible that defence counsel would have decided that there was no need for it to be the subject of cross-examination of KD. The Court in Hofer also contemplated that this line of questioning may be permissible in the “clearest of cases” where there are clear indications of recent invention (at [34]).
Secondly, the evidence filed on this appeal establishes that the Crown Prosecutor’s assumption that the applicant had not told his lawyers about aspects of his evidence, and thus he was fabricating it, was incorrect in some instances. For example, the evidence filed by the applicant’s solicitor indicates that instructions had in fact been given in relation to the incident where KD was said to have attempted to run AD over and the incident where KD told the applicant he “deserved it”.
Thirdly, the trial judge’s direction to the jury about this kind of cross-examination (above at [32]) fell short of that which was contemplated in Hofer. Significantly, the direction commenced by describing the impugned questioning as “perfectly legitimate”. His Honour followed this up by subsequently directing the jury that it was a “legitimate line of questioning” to put to a witness that because a matter had not been put to another witness they are “making it up on the run”. It is to be accepted that the direction did warn the jury that the assumption underlying such reasoning “may or may not be correct” and that his Honour identified various possible forensic reasons why counsel may have failed to put a proposition to a witness. But, ultimately, the direction did not “warn the jury about drawing any inference on the basis of mere assumption”: H**ofer at [47].
Further, this direction by the trial judge came after defence counsel objected to the cross-examination of RC, not KD. The trial judge limited his comments to the testimony of RC, and nothing was specifically said about the suggestions that the applicant had fabricated the matters relevant to KD*’*s testimony. The applicant submitted that this focus on RC would have conveyed to the jury that while it was not reasonable to infer that defence counsel was not told about various matters relating to her testimony, such an inference was reasonable with respect to the cross-examination of KD.
Fourthly, the risk that the jury may reason in this impermissible way was heightened by the Crown’s closing address. The Crown Prosecutor invited the jury to conclude that the reason matters were not put to KD was because “they were made up while he was in the witness box”. Alongside other matters, this was said to be a “very good indicator” that the applicant was not a “truthful witness”. As the Crown accepted in its written submissions, the Crown Prosecutor did not confine the relevance of the questioning to merely disproving these admittedly “peripheral” matters. Instead, they were relied upon as undermining the applicant’s credit generally. The irregularity was then not cured by any direction of the trial judge to foreclose this line of reasoning in his Honour’s summing up.
It will not always be the case that questioning an accused person in the manner which occurred in this trial will necessarily result in a miscarriage of justice. If the questioning is objected to in a timely manner and an appropriate direction provided to the jury by the trial judge, then the risk of any unfairness will usually be able to be avoided.
It is most regrettable that neither the Crown Prosecutor nor defence counsel were familiar with the principles derived from the decision in Hofer*.* That unfortunate situation was then compounded by the trial judge not being familiar with them either. The result is that there was a miscarriage of justice.
The respondent did not suggest this was a case to which the proviso to s 6 of the Criminal Appeal Act could be applied. We agree. Having regard to the centrality of the applicant’s credit in the trial it is not possible to conclude from the record of the trial, that there has not been a substantial miscarriage of justice.
**********
Douglas
R
(2021) 274 CLR 351
(1985) 159 CLR 507
(1990) 19 NSWLR 677
(1989) 54 SASR 17