Woodley (a Pseudonym) v The Queen

[2019] VSCA 32

Victorian Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Appeal
3. › Conviction appeal
4. › Substantial miscarriage of justice
5. › Incompetent or inadequate representation by trial counsel
6. › Forensic strategy inconsistent with instructions
7. › Whether strategy unavailable given accused's denial of uncharged conduct
8. › Whether failure to challenge evidence of violence constituted miscarriage of justice
1. Criminal Law
2. › Trial
3. › Duties of defence counsel
4. › Obligation to conduct defence consistently with accused's instructions
5. › Obligation to challenge evidence inconsistent with instructions
6. › Prohibition on inviting jury to reach conclusion contrary to instructions
1. Evidence
2. › Tendency and context evidence
3. › Evidence of other misconduct by accused
4. › Admissibility of evidence of domestic violence as context for sexual offending
5. › Whether evidence admissible to explain delay in complaint and accused's confidence to offend

Quick Take

Where an accused denies uncharged conduct (such as domestic violence), defence counsel is bound by those instructions to challenge evidence of that conduct and is prohibited from inviting the jury to accept it, even as part of a 'motive to lie' strategy. A forensic strategy whose very premise requires the jury to accept something the accused denies is unavailable from the outset and constitutes a substantial miscarriage of justice, without the need to weigh advantages and disadvantages of the strategy. The distinction drawn in [name withheld] v The Queen between assessing whether a forensic decision was reasonably open does not apply where the strategy was simply unavailable on the instructions.