A defence counsel's decision to invite the prosecution to adduce highly prejudicial uncharged acts evidence that the prosecution has expressly declined to lead is forensically irrational and cannot be explained as a rational forensic decision, even where the stated purpose is to mount a credit attack on the complainant. Evidence that a person dreamt or had a nightmare about an event is not relevant to proving the occurrence of that event under s 55(1) of the Evidence Act 2008 (Vic). The cumulative effect of multiple discrete failures by trial counsel — even where individual failures might not alone suffice — can establish a substantial miscarriage of justice.
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