Douglas v R [2026] NSWCCA 85.

The decision in summary.

The applicant was convicted of seventeen domestic violence offences after trial. The Crown's cross-examination of the applicant included a suggestion that his account of the events was a recent invention. The High Court in Hofer v The Queen [2021] HCA 36 had set down the principles that govern this kind of cross-examination, building on the earlier rule in Browne v Dunn (1893) 6 R 67. The Crown's questions in the trial breached those principles.

The trial judge gave a direction described in the reasons as "perfectly legitimate", but the direction did not cure the miscarriage of justice that the improper cross-examination had produced. There was no objection from defence counsel at the trial. The Court of Criminal Appeal held that the absence of objection did not mean the convictions could stand. The proviso, which allows the appellate court to dismiss an appeal even where error is shown if there has been no substantial miscarriage of justice, was not applied.

Seventeen convictions were quashed. A new trial was ordered. The decision is the most important NSWCCA application of Hofer in a domestic violence context since Hofer itself was handed down. Every NSW defence practitioner with a DV trial in their list will be reading it.

What is the rule in Hofer v The Queen?

The rule in Hofer is the more modern statement of the duty of fairness in cross-examination. The Crown must put to a witness those matters that are likely to be relied on to challenge the witness's evidence later. If a witness is to be accused of recent invention, the matters that found the accusation must first be put to the witness, so that the witness has the opportunity to deny, explain, or qualify them. The same duty applies to the accused, but it works the other way; the accused's account must not be attacked by suggestions of recent invention that rely on matters never put to the complainant.

The High Court in Hofer traced the rule back to Browne v Dunn. The 19th century cases settled the principle that fairness to the witness required notice. Hofer applied the principle to a criminal trial where the Crown had attacked the accused's account using material the complainant had never been asked about. The High Court held that the trial had been unfair. The conviction was quashed.

Hofer identifies three steps. First. Identify the matters the Crown intends to rely on to suggest recent invention. Second. Determine whether those matters were put to the complainant. Third. If they were not, ask whether the trial direction given to the jury was sufficient to undo the unfairness.

How did the Crown breach the rule in Douglas?

The reasons describe Crown cross-examination of the applicant where the prosecutor suggested that aspects of the applicant's account, on his evidence, had been invented after the events. The matters used to ground the suggestion of invention included details that had not been canvassed with the complainant when she gave evidence-in-chief. The complainant had not been asked, in cross-examination, about the conduct that the Crown was now using against the accused.

The effect of that breach in a DV trial is significant. The credibility battle in a DV trial is often the case. The jury's assessment of who is telling the truth turns on a comparison of the two accounts. A suggestion to the accused that his account is a recent invention is taken by the jury as an indicator that the accused is lying. When that suggestion is built on material the complainant was never asked about, the jury's comparison is corrupted.

Why didn't the trial direction cure the problem?

The trial judge gave a direction on cross-examination, described in the reasons as orthodox. The direction did not cure the miscarriage. The Court of Criminal Appeal explained that the direction would have had to do more than be orthodox; it would have had to tell the jury, with specificity, that the matters used by the Crown to suggest recent invention had not been put to the complainant, and that the jury was therefore not to use the absence of denial from the complainant as evidence that the matters were established.

A general direction on cross-examination is insufficient to cure a specific breach of the rule in Hofer. The cases since Hofer have repeatedly distinguished between a generic direction and a specific corrective direction. Douglas is a further statement of that distinction.

What about the failure to object?

Defence counsel at trial did not object to the cross-examination. The Crown on appeal argued that the failure to object precluded the appellate court from finding miscarriage. The Court of Criminal Appeal rejected the argument. The absence of objection is a factor in the proviso analysis but it is not, of itself, fatal. Where the unfairness is sufficiently grave, the convictions cannot stand.

The reasoning has implications for trial counsel. A breach of the rule in Hofer needs to be objected to as it happens. The objection preserves the issue for appeal; it also gives the trial judge the opportunity to fashion a specific direction at the moment the breach occurs. The failure to object does not bar an appeal but it complicates one.

Why wasn't the proviso applied?

Section 6(1) of the Criminal Appeal Act 1912 (NSW) allows the Court of Criminal Appeal to dismiss an appeal even where there is error if the Court is satisfied that there has been no substantial miscarriage of justice. The proviso is rarely applied where the error has affected the assessment of witness credibility, because credibility is the jury's function.

In Douglas, the Crown urged the Court to apply the proviso on the basis that the evidence was strong enough that the jury would have convicted in any event. The Court did not accept that submission. The reasons explain that the unfairness of the cross-examination was directly engaged with the credibility comparison the jury had to make. The Court could not be satisfied that the verdicts would have been the same if the breach had not occurred.

What does this mean for current DV trials?

Three practical consequences follow.

First. The Crown's instructions must be specific.

A DV trial requires the Crown to identify in advance the matters relied on for cross-examination of the accused. Those matters must be put to the complainant. If they are not, the Crown cannot use them.

Second. Defence counsel must be alert to the breach.

An objection at the moment the breach occurs preserves the issue and gives the trial judge the chance to correct it. The failure to object does not bar the appeal, but it complicates the appeal and may attract criticism on the bench.

Third. The specific corrective direction is what cures the breach.

A trial judge faced with a Hofer breach must give a direction that tells the jury, in clear terms, that the matters were not put to the complainant, and that the jury is not to draw an adverse inference from the absence of denial. A generic direction is insufficient.

What we do for clients facing a DV trial.

We brief the trial on the basis that the credibility battle is the case. We obtain the COPS narrative, the recorded interview, the statement of the complainant, and the audio of any 000 call. We prepare a chronology that aligns the prosecution case with the defence case. We identify the matters the Crown will rely on to suggest invention or fabrication and we anticipate whether those matters have been put to the complainant.

We brief trial counsel where the matter calls for it. The leading defence counsel in NSW DV trials are well-known to the firm. We instruct on every day of the trial. We are alert to Hofer breaches and we object at the moment the breach occurs. We work with the trial judge to fashion the appropriate corrective direction.

Where the trial has been run and a conviction is recorded that is open to a Hofer challenge, we run a sentence appeal in tandem with a conviction appeal. The two appeals run together in the District Court for Local Court matters, and in the Court of Criminal Appeal for District Court matters. The cost of an appeal is substantially less than the cost of a wrongful conviction.

Frequently asked.

What is the rule in Browne v Dunn?

The rule of fairness in cross-examination. A party intending to contradict a witness's evidence on a particular matter must first give the witness an opportunity to deal with the contradiction by putting the matter to the witness in cross-examination.

Did the accused's lawyer object at trial?

No. The reasons record that defence counsel did not object. The Court of Criminal Appeal held that the absence of objection was a factor but not fatal. The convictions were nevertheless quashed.

What is the proviso?

Section 6(1) of the Criminal Appeal Act 1912 (NSW). It allows the Court of Criminal Appeal to dismiss an appeal even where error is established, if there has been no substantial miscarriage of justice. Rare in cases where credibility was the live issue.

Will the new trial proceed?

It is open to the Crown to proceed to a new trial. The applicant has the benefit of the reasons in Douglas at any new trial. The Crown may not run the cross-examination in the way it ran the first trial.

Does Hofer apply to Local Court matters?

Yes. The rule of fairness in cross-examination is not jurisdictional. It applies in the Local Court, the District Court, and the Supreme Court. A Local Court matter where the rule has been breached and a conviction recorded can be appealed to the District Court by way of severity or conviction appeal.

To speak to a criminal defence lawyer, call Aaron Kernaghan on 0421 717 019.

This article is written by Aaron Kernaghan, criminal defence lawyer at Good Legal Lawyers, as at 25 June 2026. It is commentary and reflects the personal opinion of the author only. It is not legal advice, it is not a substitute for advice on your own matter, and it does not purport to be accurate or complete. Any matter referred to may be before the court and any person charged is presumed innocent. For advice on a specific matter, contact Aaron Kernaghan on 0421 717 019 or contact the firm.

More criminal-law commentary by Aaron Kernaghan.

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