Allen (a pseudonym) v The Queen

[2016] VSCA 59

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0090

NICOLAS ALLEN (A PSEUDONYM)[1]	Applicant
v
THE QUEEN	Respondent

[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.

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JUDGES:	MAXWELL P, REDLICH and PRIEST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February and 7 March 2016
DATE OF JUDGMENT:	31 March 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 59
JUDGMENT APPEALED FROM:	DPP v [Allen] (Unreported, County Court of Victoria, Judge Smallwood, 20 January 2014 (Conviction))

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CRIMINAL LAW — Appeal — Conviction — Incest and indecent assaults — Conduct of defence counsel — Forensic decision to allege collusion between complainant and mother — Duties of counsel — Absence of instructions or evidence of collusion — No rational forensic benefit for  pursuing  explanation  of collusion — Warning by trial judge that such cross examination  would likely result in  introduction of prejudicial bad character evidence — Failure to sufficiently  challenge  trial judge’s view — Evidence of bad character admitted — Failure of judge to preclude admission of irrelevant prejudicial  evidence — Substantial miscarriage of justice — Appeal allowed — Retrial ordered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr D Dann SC and Mr H Venice	Valos Black & Associates
For the Crown	Mr D Trapnell QC (5 February 2016); Mr C Boyce SC (7 March 2016)	Mr J Cain, Solicitor for Public Prosecutions

MAXWELL P
REDLICH JA
PRIEST JA:

Summary

1. In the applicant’s trial for serious sexual offences, his counsel advanced a ‘defence’ that the complainant had colluded with her mother to make false allegations of sexual impropriety against him.  The suggested motive for the two colluding was a desire to effect cancellation of the applicant’s parole.  The  trial judge warned counsel that if he advanced such an explanation, it was likely that evidence of the applicant’s bad character would  emerge, and made it clear that he would not prevent the admission of such highly prejudicial evidence.  Despite the judge’s  warning, counsel determined to pursue the explanation and put a positive assertion of collusion to the complainant’s mother.

1. During counsel’s cross-examination, and the prosecutor’s re-examination, of the complainant’s mother,  evidence was adduced that the applicant had previously been involved in discreditable conduct of a serious nature, including violence towards the complainant’s mother and her children, and had been imprisoned for the commission of very serious offences.  The evidence was inflammatory and highly prejudicial, and had little or no probative value.  Thus, the very consequences foreshadowed by the judge were permitted to occur.

1. As counsel had neither instructions nor evidence to support a positive assertion of collusion, the assertion should not have been made.  Further, there was no forensic benefit that could be derived from pursuing that allegation.  Moreover, counsel failed adequately to resist the admission of irrelevant and highly prejudicial evidence.  He asked open-ended questions, which resulted in the admission of much of the extremely prejudicial evidence.  And the…