Lucciano (a pseudonym) v The Queen  VSCA 12 (9 February 2021) – http://classic.austlii.edu.au/au/cases/vic/VSCA/2021/12.html
The Victorian Court of Appeal recently overturned convictions relating to an historical sexual assault case, for the perceived and actual prejudice suffered by the appellant in circumstances where the criminal prosecution had the distinct advantage of the subject allegations being tested in a preceding civil trial.
In describing the matter as “wholly unique” the Court of Appeal’s reasoning laid bare the importance of affording due and proper process to an accused.
Lucciano’s sister had alleged that he had sexually assaulted her in the family home between 1962 and 1963.
She sued him in 2015 for damages. At the civil trial, counsel for the plaintiff stated that she had not made a complaint to the police. Lucciano himself and others gave evidence in his defence. The judge was satisfied on the balance of probabilities that the assaults occurred and that the plaintiff had suffered injury loss and damage for which he ordered Lucciano to pay compensation.
Astoundingly, just days following the Court’s determination, Lucciano was arrested and interviewed by the police with respect to the allegations. He was later charged with sexual offences, to which he pleaded not guilty.
At the time of trial in September 2019, Lucciano was 80 years old and the charges related to events that were said to have occurred some 56 years prior. He was sentenced to 11 months, 28 days in prison, wholly suspended for 18 months.
Before a jury was empanelled, Lucciano sought a permanent stay of the criminal proceedings on the basis that the earlier civil proceedings prejudiced him in his defence of the charges. Lucciano’s civil barrister deposed that he would have sought a stay of the civil proceedings had he known that criminal charges were contemplated.
The application for a permanent stay was refused and the matter proceeded to trial, whereby crucially, the prosecution drew on the evidence from the civil trial. A jury found Lucciano found guilty on all but 2 of the 13 charges
Lucciano appealed the convictions on the grounds that:
- The civil trial relating to substantially the same allegations being heard prior to the criminal charges, together with the delay separately and cumulatively rendered the criminal trial a substantial miscarriage of justice.
- The trial judge erred in admitting evidence of civil trial damages that Lucciano was ordered to pay.
- The trial judge erred in failing to direct the jury that the civil trial result could not be used as proof of the criminal charges.
The Director of Public Prosecutions accepted on ground 1 alone that the appeal should be allowed and that accordingly, Lucciano be acquitted.
Findings of prejudice
In making those orders, the Court of Appeal observed that the danger in the sequence of proceedings is that the civil trial is effectively run as a “dress rehearsal” for the criminal trial. Here, that danger materialised in the prosecution having the actual advantage of hearing Lucciano’s evidence in the civil trial – evidence which Lucciano was at liberty not to give in any criminal proceedings.
The admission of evidence in the criminal trial gave rise to a plethora of presumptive prejudices in that Lucciano:
- in the civil trial, required to go into evidence on the subject matter of the charges before they were laid;
- in the civil trial, required to provide discovery which the prosecution could have used to frame its indictment;
- deprived of his right to silence in criminal proceedings;
- deprived of the opportunity not to give evidence at the criminal trial where the evidential burden is higher than civil proceedings;
- essentially “locked” into the evidence he provided in his defence of the civil proceedings and ‘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 … .’ (at 27, citing X7 v Australian Crime Commission  HCA 29; (2013) 248 CLR 92 at 142-3.)
Further, given the plaintiff sat in during the civil trial and heard all of the there was potential that she could have framed her evidence in support of the criminal trial.
More germane, the actual and material prejudice, which rendered this matter “extraordinary” were observed to include:
- that the jury was provided knowledge of the outcome of the civil case as it formed a rebuttal to an argument that the case was a money ploy by the complainant. This formed a key part of Lucciano’s defence but to employ it carried the risk that the jury formed a prejudicial judgment concerning the loss of civil proceedings and thereby imputed guilt. Lucciano was arguably cornered into this defence strategy by reason of the prosecution’s advantage by the foregoing proceedings.
- Lucciano was cross-examined using evidence given at the civil trial.
- The civil trial transcripts were used in the criminal trial.
- The prosecution was afforded real forensic advantage by the hearing of the civil trial.
In concluding its reasoning the Court of Appeal held that the presumptive and actual prejudice ‘amply demonstrated that it was not possible for there to be a fair trial in this case.’
Institutions need to be mindful that civil claims for damages should not precede criminal proceedings arising out of the same allegations. Whilst institutions are under no obligation to former employees who commit criminal offences, they should be mindful not to allow a Lucciano type situation to develop. The public interest is best served by offenders being afforded a fair trial and then punished if they are convicted.
To this end institutions should ensure that civil proceedings do not continue until such time as criminal proceedings arising out of the same allegations have run their course.
They can do this by first ascertaining whether an employee is still living. An institution should only be satisfied of death on production of a death notice, death certificate, or confirmation from the police. If living, enquiries should be made with the police as to the status of any investigations.
As an aside, institutions should be mindful of their mandatory reporting obligations and have a robust system in place for the reporting of allegations.