Allen (a pseudonym) v The Queen

The appeal concerns the conviction of the applicant, Allen, for incest and indecent assaults, with the decision of the court being delivered by the High Court of Australia. The core of the dispute lies in the conduct of the defence counsel during the trial, specifically in the decision to allege collusion between the complainant and her mother, leading to the introduction of prejudicial evidence of bad character. This evidence was deemed highly prejudicial and irrelevant, which subsequently resulted in the admission of prejudicial material suggesting the applicant's bad character, including a propensity for violence.

The primary legal issue before the court was whether the conduct of the defence counsel, in pursuing the allegation of collusion between the complainant and her mother, was justified under the Evidence Act 2008. The court examined whether there were rational grounds for this line of inquiry, given the absence of instructions or evidence of collusion. Additionally, the court had to determine if the trial judge erred in allowing the prejudicial evidence of bad character, and whether this constituted a substantial miscarriage of justice. The court noted that under the Evidence Act, evidence of an accused's bad character is not admissible unless the accused has provided evidence to prove their good character, either generally or in a particular respect.

The court found that the defence counsel's decision to pursue the allegation of collusion was improper and forensically unwise. The court held that there were no rational grounds for this line of inquiry, as there were no instructions or evidence to support the allegation of collusion. Furthermore, the court emphasised that the admission of evidence of bad character was unwarranted and prejudicial. The trial judge's failure to preclude the admission of this irrelevant and prejudicial evidence was considered a substantial error. Consequently, the appeal was allowed, and a retrial was ordered to rectify the substantial miscarriage of justice.