Lucciano (a pseudonym) v The Queen [2021] VSCA 12

1 After a trial in the County Court, the applicant was convicted of nine charges of indecent assault of a girl under 16,[1] one charge of gross indecency with a girl under 16,[2] and one charge of common assault.[3] He was sentenced to a total effective sentence of 11 months and 28 days' imprisonment, wholly suspended for 18 months.

2 Two features of the case make it extraordinary. The first, which regrettably is less extraordinary than it ought to be, is that the conduct the subject of the charges took place some 56 to 57 years before the trial. The second, which as far as we are aware makes this case wholly unique, is that the subject matter of the charges had, in the year before the criminal trial, been litigated in a civil proceeding brought by the complainant against the applicant in the County Court. By judgment given in that trial, the applicant was ordered to pay the complainant $215,000 by way of damages for the conduct alleged against him.

3 The applicant sought leave to appeal against his conviction on five proposed grounds. After oral argument on behalf of the applicant had been completed in respect of the first three grounds, counsel for the respondent indicated to the Court that the Director of Public Prosecutions accepted that the first ground should be upheld. The Court indicated that it accepted that this was an appropriate concession and made orders allowing the appeal, setting aside the applicant's convictions and directing that verdicts of acquittal be entered in their place. These are the reasons of the Court for making those orders.

4 Leading counsel for the applicant, in her submissions in respect of ground 1, emphasised that the subject matter of ground 2 and ground 3, being the admission of evidence and the giving of directions to the jury in respect of the result of the civil trial, were relevant also to ground 1. We therefore set out grounds 1, 2 and 3 below. It is not necessary to consider proposed ground 4 (inconsistent verdicts) or ground 5 (certain verdicts being unreasonable or unable to be supported having regard to the evidence). The first three grounds were as follows:

Ground 1:

Separately and in combination, the consequences of:

(a) the civil trial relating to substantially the same allegations being heard prior to the laying of criminal charges; and

(b) the 57-year delay between the alleged offending and the criminal trial;

resulted in the applicant's criminal trial being unacceptably unfair, thereby giving rise to a substantial miscarriage of justice.

Ground 2:

The learned trial judge erred in admitting evidence that the complainant had obtained $215,000 at a civil trial which related to substantially the same allegations.

Ground 3:

The learned trial judge erred in failing to direct the jury that the result of the civil trial could not be used in proof of the criminal charges.

5 The trial proceeded on 13 charges, two of which, involving allegations of indecent assault against a girl under the age of 16, were the subject of not guilty verdicts (charges 1 and 2). The other charges concerned four separate incidents.

6 The complainant was the younger sister of the applicant. At the time of the alleged offending, the applicant was aged between 23 and 24 years and the complainant was between 14 and 15 years old.

7 The applicant was born in Italy and came to Australia in 1955, aged about 16. On 30 April 1962, the majority of the applicant's family migrated to Australia and moved into a 12-square, two-bedroom house that the applicant had built in Mooroolbark in the meantime. Those living in the house were the applicant's parents, his younger brothers D, F and A, the complainant and a younger sister, and the youngest brother, I. A few months later, the second eldest brother after the applicant, B, joined the family in the house. The alleged offending occurred in 1962 and 1963.

8 The first set of charges of which the applicant was found guilty involved a single occasion between 1 April 1962 and 31 August 1962. It was alleged that the applicant went into the bedroom the complainant shared with her sister, woke her up and told her to go with him to the bathroom. She did so and the applicant is said to have forced her to masturbate his penis until ejaculation. During this episode, the applicant is said to have touched the complainant on her breasts and vagina (charges 3, 4 and 5).

9 The second incident was said to have occurred between 1 August 1962 and

31 October 1962 (charges 6, 7, 8 and 9). It was again alleged that the conduct occurred in the bathroom of the family home after the applicant had woken the complainant in the bedroom she shared with her sister. It was said that the applicant touched the complainant's breasts and vagina and forced her to touch his penis. It was also alleged that he had placed his tongue inside her mouth. It was alleged that the applicant ejaculated into his hand.

10 Thirdly, under charge 10, it was alleged that in November or December 1962, the applicant had kicked the complainant in the back because she had disobeyed an instruction he had given her not to dance with groomsmen at their cousin's wedding.

11 Finally, it was alleged that early in 1963, the family had been at the beach with their mother and that, while purportedly teaching the complainant to swim, the applicant had fondled her breasts and vagina and rubbed his erect penis against her body (charges 11, 12 and 13).

12 The prosecution also relied on certain uncharged acts. First, it was alleged that, after B arrived in Australia later in 1962, the family bought a Holden station wagon which B would drive. It was alleged that the applicant's parents were in the front seats and that the applicant was sitting in the backseat, where, on one or two occasions, he sat the complainant on his lap where she felt his erect penis. Secondly, it was alleged that, when the complainant was 16, the applicant had grabbed her breast in the lounge room. Thirdly, it was alleged that, about seven months later, and about one month before the applicant married his wife, the complainant and the applicant's future mother-in-law had dinner at the home of the latter with other family members. The complainant stayed the night. The next day, the applicant came to collect her and it was alleged that in the car on the way home he touched her breasts and tried to put her hand on his penis.

13 In March 2015, the complainant instructed a solicitor that she had been sexually assaulted by the applicant as a child. In September 2015, the solicitor sent a letter of demand to the applicant seeking compensation. Civil proceedings were issued on 14 October 2015 and the applicant filed a defence on 11 November 2015.

14 On 28 February 2016, the complainant reported the matter to police. She made a formal statement to police on 16 March 2016.

15 At the civil trial in the County Court in October 2016, counsel for the complainant made statements to the Court, and to counsel for the applicant, which caused counsel for the applicant to understand that the complainant had not made a statement to police. We refer to the circumstances in further detail below.

16 The County Court proceeding was determined by Judge Davis in October 2016.[4] As mentioned, the applicant was ordered to pay the complainant $215,000. Shortly thereafter, on 27 October 2016, the applicant was arrested and interviewed by police. He gave a 'no comment' record of interview. On 12 May 2017, an appeal was heard against the judgment of Judge Davis. This Court refused leave to appeal on 23 June 2017.[5]

17 A week later, on 30 June 2017, the applicant was charged with the criminal offences.

18 The criminal trial took place in September 2019, by which time the applicant was 80 years old. He gave evidence denying the alleged conduct.

19 At an early stage in the trial, the applicant sought to have the trial permanently stayed, on the basis that there had been an effective abuse of process as a result of the civil trial having preceded the criminal trial, and on the basis of the very significant delay between the time of the charges and the trial.

20 For that purpose, senior counsel who had appeared for the applicant at the civil trial swore an affidavit and gave evidence. In his affidavit, he stated that, during his opening address, senior counsel for the complainant referred to a recorded telephone conversation between the applicant and the complainant, which took place while the complainant was at a police station, and referred also to a 'detailed statement'. Senior counsel for the applicant said that he raised the matter of the statement in court and in conversation outside court with senior counsel for the complainant. As a result, he considered that no statement existed and was satisfied that the police had not decided to lay criminal charges against the applicant. Senior counsel said that he was so satisfied because discovery had taken place and the complainant's counsel had 'declared that there was no statement'. He inferred this was because the pretext call had produced no admissions. Senior counsel for the applicant said that, to have any chance of success in the civil trial, the applicant would have to give evidence. Had he known that a criminal prosecution was contemplated he would have sought an adjournment of the civil trial.

21 In his evidence, senior counsel for the applicant said that he clearly recalled senior counsel for the complainant saying, after earlier addressing the Court in contradictory terms, that there was no statement. He also accepted that nobody had told him that the police had decided not to lay charges. As far as discovery was concerned, the transcript revealed that senior counsel for the complainant told the Court that the complainant had no statement: 'she's got no statement from the police, she's been to the police, no statement'. Senior counsel for the applicant, understandably, thought it inconceivable that, if the complainant had made a statement to police, she would not have a copy. He therefore considered that she must have made no such statement.

22 After hearing full argument, the judge in the criminal trial delivered very careful and considered reasons for refusing to stay the trial. No appeal was sought to be brought from that decision. Nor does ground 1 of the present appeal purport to challenge the trial judge's disposition of the stay application. Rather, the applicant seeks to establish, in light of the whole of the conduct of the trial that subsequently took place, that the trial was so unacceptably unfair that there has been a substantial miscarriage of justice.[6]

23 Since the respondent has conceded that the appeal must be allowed, nothing would be gained by setting out at any length the submissions of the parties. However, the Court was greatly assisted by the written cases of both parties and by the oral submissions of senior counsel for the applicant.

24 It cannot be doubted that, had the applicant been aware that criminal charges were imminent, he would have had a persuasive argument that the civil proceeding be stayed pending the determination of those charges. The prospect that civil proceedings may need to be stayed to avoid prejudice to criminal proceedings is not novel.[7] If the issues and the circumstances relevant to both proceedings are substantially identical, it will be readily apparent that there is a risk of prejudice in the defence of the criminal trial.[8] In effect, the civil proceeding would operate as a 'dress rehearsal' or 'test run' for the criminal trial.[9]

25 However, the question raised by this appeal is novel. It is whether, the civil proceeding about the very subject matter of the criminal trial having been heard and determined, the risk of prejudice has come to pass, such that the criminal trial was so unfair that there has been a substantial miscarriage of justice. Counsel informed the Court that their researches had found no case in which this sequence of events had occurred. Similarly, we have not found a case in which an initial civil proceeding was finally determined in advance of a criminal trial, at least where the proceedings shared a common subject matter.[10]

26 The applicant relied on prejudice of several kinds. The first may be characterised as presumptive prejudice. It consisted of the fact that, by running a civil trial in ignorance of the true position, the applicant had, in effect, been required to go into evidence about the subject matter of the charges, before those charges were laid. The applicant was effectively required to take this course because the evidence of the complainant in the civil trial would otherwise have been unanswered, in a case determined on the balance of probabilities. This had the practical effect of depriving him of the right not to answer questions or give evidence in respect of the criminal charges. It also 'locked' him into that evidence in a manner that was inimical to the accusatorial system of criminal justice.

27 By analogy, Hayne and Bell JJ described the effect of compulsory pre-trial examination on the criminal process in X7 v Australian Crime Commission:[11]

Requiring the accused to answer questions about the subject matter of a pending charge prejudices the accused in his or her defence of the pending charge (whatever answer is given). Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered.[12]

No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self‑incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.[13]

28 While the present case did not involve a compulsory examination, it presented further difficulties that a compulsory examination might not. For one thing, the applicant was required to give discovery (even though the privilege against self-incrimination might have been claimed in that process). For another, the charges had not been laid and so those framing the indictment could do so with the benefit of the applicant's evidence. It should be emphasised, however, that the applicant did not advance any argument of police or prosecutorial misconduct in this case.

29 The above observations were made in the context of determining the proper construction of statutory provisions allowing for compulsory examination. The question here is of course the different one as to the fairness of the trial. That brings into play issues going beyond the impact on the accusatorial process. In particular, the question arises what role the applicant may have had in acquiescing, by silence or otherwise, in that impact.

30 But here, as the trial judge accepted, the applicant had no knowledge that criminal charges were imminent, or that the complainant had made a statement to police. He was entitled to assume, in light of what was said by senior counsel for the complainant and the fact that no statement had been discovered, that no statement existed and no decision had been made to lay charges. Although it might be said that the position was not entirely certain, and criminal charges had not been ruled out, this was not a case, especially given the assurances of senior counsel for the complainant, where the applicant participated in the civil trial knowing or suspecting that a criminal trial would follow.

31 As well as the presumptive prejudice arising from the fact of the civil trial, there was actual prejudice. The informant used the civil trial transcript as part of the criminal investigation. The prosecutor accepted that he had used the transcript of the civil trial in preparing for the criminal trial. So, the applicant in this Court pointed to the fact that particular evidence he had given in the civil proceeding was deployed against him in the criminal trial. After giving evidence that he never travelled in the back seat of the family car, he accepted, based on what he had said in the civil trial, that there were occasions when he had done so. It was put to him, when he denied having been able to commit the final uncharged act in the car because of a work injury, that he had made no reference to that injury at the civil trial.[14]

32 In addition, the prosecutor was able to make use of the evidence of other witnesses including the brother A and sister D, who were called by the complainant at the civil trial and thereafter by the prosecution. More significantly perhaps, brother I was called by the prosecution after the applicant had called him at the civil trial. The prosecutor was permitted to cross-examine him as an unfavourable witness under s 38 of the Evidence Act 2008, including as to how often brother B drove the car, on the basis of his evidence at the civil trial.

33 Conversely, brothers D and F gave evidence at the civil trial but were not called by the prosecution, leaving the applicant to call them as his own defence witnesses. When the prosecutor cross-examined D, he was able to put to him, based on his evidence at the civil trial, that he could not properly remember the sleeping arrangements in the family home or when his brother B started to drive (the latter being relevant to the incidents said to have happened in the back seat of the car while B was driving). After F gave evidence that none of the rooms in the house had locks on them, he was cross-examined by reference to evidence he had given at the civil trial that the bathroom door had a lock on it.[15] It was put to the applicant's wife, who gave evidence about the work injury and to the effect that the complainant never stayed the night at her family home, that she had not given evidence to that effect, or at all, at the civil trial. Finally, it was also put to the applicant's cousin, who gave evidence for the defence, that she had not given evidence at the civil trial.

34 As might have been expected, the complainant sat through the civil trial and saw the evidence relied upon by the applicant. It does not seem to have been put to her, however, that she used this knowledge to craft her evidence in the criminal trial.

35 As part of the discovery process in the civil proceeding, the applicant produced evidence of the purchase of the family car, and of his own and B's driver licence history. These documents were tendered by the defence, but through the civil trial the prosecution had advance knowledge of them.

36 Taken individually, the items of actual prejudice relied on by the applicant are perhaps not of great moment. Taken together, of course, they are more significant. But more importantly, they serve to illustrate, in a way that was not necessarily apparent when the judge ruled on the stay application, that the risk of prejudice was not merely theoretical. A civil trial had been fought on multiple factual issues which were litigated again in a criminal trial, and the prosecution was afforded real advantages from that profound departure from the accusatorial system of criminal justice.

37 The subject matter of grounds 2 and 3 also serves to highlight the very real prejudice which arose from the prior holding of the civil trial. Again, the prejudice is presumptive as well as actual. In Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission, the Full Federal Court endorsed the following observations made by Finkelstein J as to the potential impact on a criminal jury aware of the outcome of a preceding civil trial:

[T]here is potential for an adverse impact on the jury. The civil case will be decided on evidence that, for the most part, will not be available to the prosecutor in a criminal trial. Imagine what would happen if a jury discovers that a civil court has ruled that [the defendant's] conduct is illegal. The judge presiding over the criminal trial will be obliged to tell the jury to leave that out of account. It is axiomatic in our courts that jurors can be trusted to leave out of their consideration things that they are instructed to leave out. Yet many regard this kind of instruction as little more than wishful thinking. Perhaps the jurors will have explained to them that the judge who made the ruling acted on evidence not before the jury and that in any event a lower standard of proof was required in the civil court. Whether those instructions will result in a fair criminal trial may be strongly doubted.[16]

38 Here, it was a key part of the applicant's defence that the complainant was making false allegations in order to extract money from him. The fact that she had sued him was part of the evidence the defence relied on. Understandably, the prosecution sought to rebut that evidence by leading evidence that the complainant had already been compensated, making a financial motive for her evidence in the criminal trial less likely. Conceivably, the jury could only have been told that the civil process had been completed, without disclosing the outcome, but that would have risked the jury speculating about what had happened. In the event, the jury was told that the complainant had received compensation in the amount of $215,000 (albeit without being told expressly that the amount had been awarded by a court). This raised the question how the jury should be directed that it could, or could not, use that information. The risks of misuse of this evidence were manifold. They included a risk of treating the evidence as amounting to a finding on the balance of probabilities, upon which the jury might wrongly rely, that the applicant had done the acts alleged. Defence counsel made the forensic decision to ask the judge to say as little as possible on the subject. But whatever might be said as to the course that was taken, the defence was plainly in a very difficult position as a result of the jury needing to be told something about the outcome of the civil trial. The only way to avoid the problems would have been for the defence to have discarded the key defence as to motive upon which it relied.

39 In addition to these matters relating to the fact of the holding of the civil trial, the applicant relied also on considerations of a kind more familiar from those cases in which permanent stays have been sought as a result of delay between the alleged offending and the criminal trial. In particular, the applicant referred to difficulties for the complainant and other witnesses, as well as the applicant himself, in recalling events. Records of the applicant's work injury could no longer be obtained. Importantly, the evidence of five material witnesses was unavailable: the mother of the applicant and the complainant (who was said to have been involved in the aftermath of the alleged common assault (charge 10) and to have been present immediately prior to and after the alleged offending at the beach (charges 11-13), and who could have given evidence as to driving and sleeping arrangements and any locks in the house); their father (who could have given evidence about driving and the house and also could have contradicted an account of an uncharged act given by the complainant, which would have discredited her evidence more generally); brother B (who could have described sleeping arrangements and given evidence about locks, and could also have given firm evidence as to whether he drove the car after it was first purchased); and the mother and grandmother of the applicant's future wife, who could have given evidence as to whether the complainant ever stayed the night at their home. In respect of most of these matters, the evidence that was available was conflicting and these witnesses would have been material.

40 The question of sleeping arrangements arose because, whereas the complainant described herself and her sister as having slept in one of the bedrooms, other evidence, including that of the applicant, was to the effect that they slept in the dining room, which was much further from the bathroom. The existence or not of a lock on the bathroom door went, of course, to the likelihood of offending taking place in an unlocked room in the crowded family home. The prosecution sought to counter the evidence of the siblings called by the defence by suggesting that their memory had been dimmed by the passage of time. In doing so, the prosecution sought to deploy the delay and associated problems with memory to its advantage, thereby highlighting and compounding the defence's forensic disadvantage.

41 As already indicated, the question before the Court is not whether the trial judge's discretion miscarried when he refused to stay the trial, but whether, as events have transpired, the trial was so unacceptably unfair that there has been a substantial miscarriage of justice.[17] However, the considerations to be taken into account are broadly the same, and cases concerning applications for a permanent stay are applicable in this context also. The focus, of course, is not on whether there ought to have been a trial but whether the trial that has been conducted has given rise to a substantial miscarriage of justice. That will be so, to adopt language used in stay cases, if it is shown that the delay gave rise to a fundamental defect going to the root of the trial, of such a nature that nothing that the trial judge could have done would have relieved against the unfair consequences.[18]

42 The cases draw a distinction between the loss of evidence as a result of delay and the loss of the opportunity to obtain evidence.[19] In the latter case, the content of the evidence is a matter of speculation and by itself this may not constitute actual, as distinct from presumptive, prejudice. If so, it is more likely that a forensic disadvantage direction will be able to remedy the deficiency.[20]

43 However, even where it cannot be said what evidence witnesses would have given, their absence may still give rise to prejudicial unfairness. It is necessary to focus on the value of the lost opportunity, assessed from the perspective of the defence.[21] The cumulative effects of delay must be considered. So, Beach and Kyrou JJA explained in Morton v The Queen:

It may be accepted that it cannot now be said with any precision what evidence the deceased individuals would have given if they were alive and the extent to which that evidence would have been exculpatory. It may also be accepted that an element of speculation is involved in discussing such evidence. However, the death of a large number of witnesses, some of whom would have been in a position to give highly probative evidence that was capable of supporting the applicant, has deprived him of important means of defending himself.[22]

44 This approach was approved and applied in McGee v The Queen.[23] In both cases, among other things, deceased family members lived in the house where offending was said to have taken place and could have given evidence about both the house itself and what they had seen and heard. Without knowing what the lost evidence might have been, it was plainly highly material. Taking all the circumstances into account, its loss went directly to the fairness of the trial.

45 The delay in Morton was in the order of 53 to 56 years, which Beach and Kyrou JJA characterised, uncontroversially, as 'extreme', heightening the presumptive and specific prejudice created.[24] They explained:[25]

As a matter of common experience, the passage of up to 56 years since the commission of an alleged offence cannot but diminish memory and render unavailable documents and other independent evidence that create a context which assists in the recollection or reconstruction of relevant events. The problem is not only that relevant events cannot be recollected accurately but also that there is no longer any awareness - even of a vague nature - of the existence of previously known events which might be significant in the defence of an accused. As McHugh J said in Brisbane South Regional Health Authority v Taylor:

The enactment of time limitations has been driven by the general perception that '[w]here there is delay the whole quality of justice deteriorates'. Sometimes the deterioration in quality is palpable, as in the case where a crucial witness is dead or an important document has been destroyed. But sometimes, perhaps more often than we realise, the deterioration in quality is not recognisable even by the parties. Prejudice may exist without the parties or anybody else realising that it exists. As the United States Supreme Court pointed out in Barker v Wingo, 'what has been forgotten can rarely be shown'. So, it must often happen that important, perhaps decisive, evidence has disappeared without anybody now 'knowing' that it ever existed. Similarly, it must often happen that time will diminish the significance of a known fact or circumstance because its relationship to the cause of action is no longer as apparent as it was when the cause of action arose.[26]

46 In McGee, the delay was about 55 years. As well as pointing to the presumptive prejudice such a delay involves, both these cases demonstrate that, especially given a delay of such an extraordinary magnitude, it is not necessary for an accused to be able to identify the evidence that has been lost, in order for that loss to bear on the question whether a fair trial can be had. We note that both cases were decided after the trial judge's ruling in the present case.

47 In our opinion, the presumptive and actual prejudice to which the applicant pointed, and in particular that arising from the prior conduct of the civil trial, for which he cannot fairly be held responsible, amply demonstrate that it was not possible for there to be a fair trial in this case. It is not necessary to repeat the details of that prejudice. It resides especially in the very fact of the prior conduct of the civil trial, amplified by the tangible advantages that gave to the prosecution. Nor is it necessary to decide whether a trial could fairly have taken place if not for the holding of that civil trial. But the prejudice going beyond the holding of the civil trial is also real. It includes the loss of potentially significant evidence on contested matters, including the household sleeping arrangements and whether the bathroom door had a lock, even though in most cases it cannot be said what that lost evidence might have been. As in Morton and McGee, the actual prejudice is illustrative of the profound presumptive consequences of the 56 to 57 year period of delay.

48 In that connection, we cannot conclude these reasons without expressing our disquiet at the apparently increasing frequency with which cases involving delays in the order of 40 to 60 years are coming before the Court. While it is true that some trials may be fairly held in such circumstances, and the responsibility for deciding whether criminal proceedings should be maintained lies, in the first instance, with the Executive,[27] the forensic difficulties which delays of this order of magnitude inflict suggest that such trials should be rare. It is of course relevant, in deciding whether to grant a permanent stay, to take account of the relative seriousness of the charges.[28] It is to be expected that this is also a matter taken into account in deciding whether to bring charges in the first place.

[1] Contrary to s 55 of the Crimes Act 1958 as it stood in 1962-3.

[2] Contrary to s 69(1) of the Crimes Act 1958 as it stood in 1962.

[4] BBB v FFF [2016] VCC 1431.

[5] FFF v BBB [2017] VSCA 156.

[6] Criminal Procedure Act 2009 s 276(1)(c); Bauer (a pseudonym) v The Queen [2015] VSCA 55; (2015) 46 VR 382, 404 [103] (Priest JA, Maxwell P and Weinberg JA relevantly agreeing at 385 [1]-[3] and 389 [32]-[34]); R v Demirok [1976] VicRp 19; [1976] VR 244, 251 (Young CJ, Lush and Crockett JJ).

[7] Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46, 60 [47] (French CJ, Kiefel, Bell and Keane JJ) ('Zhao').

[9] McLachlan v Browne (No 9) [2019] NSWSC 10 [38] (McCallum J); Queensland v Shaw [2003] QSC 436 [25] (Mackenzie J).

[10] In some cases, civil proceedings have been permitted to advance ahead of criminal proceedings that are 'substantially different in nature', 'different in nature and focus', or for which the subject matter of the civil proceedings is merely peripheral: see, eg, White v Australian Securities and Investments Commission (2013) A Crim R 83, 86 [9]-[10], 92 [24]-[25] (Muir JA, Gotterson JA and Applegarth J agreeing at 94 [35] and [36]); Australian Competition and Consumer Commission v Construction, Forestry, Mining and Energy Union [2016] FCA 504 [37], [63]-[65] (Middleton J) ('ACCC v CFMEU'); Crespin v Francis [2016] VSC 277 [5], [16]-[18], [35] (J Forrest J). In other cases, civil proceedings have been permitted to advance ahead of related criminal proceedings where undertakings are given not to traverse in the civil proceeding matters the subject of the criminal proceeding, eg, Ruzehaji v Commissioner of the Australian Federal Police (2015) SASR 355, 383 [92]-[93] (Gray J, Peek J and Nicholson J agreeing at 384 [97] and [98]), or where it is unclear that the defendant(s) to the criminal proceeding would give evidence in the civil proceeding, eg Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; (2016) 242 FCR 153, 163-4 [37] (Dowsett, Tracey and Bromberg JJ). In at least one case, a civil proceeding following an initial criminal trial has been permitted to advance ahead of a conviction appeal and a possible retrial: Stocks v Johns [2019] VSC 854 (Croucher J). In other cases, civil proceedings have been permitted to advance through a certain number of pre-trial steps ahead of anticipated criminal proceedings, eg, JB Asset Management v LBA Capital Pty Ltd [2020] VSC 629 [22]-[26] (McDonald J), or on the basis that the delivery of reasons and determination of relief in the civil proceeding may be deferred until the criminal proceeding has concluded, eg, ACCC v CFMEU [2016] FCA 504 [101].

[11] [2013] HCA 29; (2013) 248 CLR 92 ('X7').

[14] This featured in the prosecutor's closing address and the judge's charge to the jury.

[15] Again, this evidence featured in the judge's charge.

[16] Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission [2016] FCAFC 97; (2016) 242 FCR 153, 165 [46] (Dowsett, Tracey and Bromberg JJ), quoting Australian Securities and Investments Commission v HLP Financial Planning (Aust) Pty Ltd (2007) 164 FCR 487, 504 [59] (Finkelstein J).

[17] See [22] above.

[18] Hermanus (a pseudonym) v The Queen [2015] VSCA 2; (2015) 44 VR 335, 342 [40] (Priest JA, Maxwell P agreeing at 336 [1]) ('Hermanus'); Green (a pseudonym) v The Queen [2017] VSCA 277, [65] (Priest, Kaye and Coghlan JJA); Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23, 34 (Mason CJ).

[19] Jones (a pseudonym) v The Queen [2017] VSCA 111, [69] (Whelan and Ferguson JJA and Kidd AJA); Kenny (a pseudonym) v The Queen [2018] VSCA 220, [69] (Taylor AJA, Priest JA and Weinberg JA agreeing at [1] and [94]) ('Kenny'); Carson (a pseudonym) v The Queen [2019] VSCA 4, [16], [18] (Maxwell P and T Forrest JA).

[20] Kenny [2018] VSCA 220, [72].

[21] McGee (a pseudonym) v The Queen [2020] VSCA 146, [132] (Maxwell P, T Forrest and Weinberg JJA).

[22] (2020) 281 A Crim R 307, 333 [154]; [2020] VSCA 49 ('Morton').

[23] [2020] VSCA 146, [145] (Maxwell P, T Forrest and Weinberg JJA).

[24] Morton (2020) 281 A Crim R 307, 350 [133].

[26] [1996] HCA 25; (1996) 186 CLR 541, 551 (citations omitted).

[27] Hermanus [2015] VSCA 2; (2015) 44 VR 335, 342 [40] (Priest JA).

[28] Carson [2019] VSCA 4, [22]. We do not consider this to be relevant in a case such as the present where the question is whether there has been a serious miscarriage of justice.