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Lucciano v The Queen

Lucciano v The Queen

Case [2021] VSCA 12 1 February 2021

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0059

ORTENSIO LUCCIANO (a pseudonym)	Applicant
v
THE QUEEN	Respondent

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JUDGES:	McLEISH, NIALL and T FORREST JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	1 February 2021
DATE OF JUDGMENT:	1 February 2021
PUBLICATION OF REASONS:	9 February 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 12
JUDGMENT APPEALED FROM:	[2020] VCC 177 (Judge Georgiou)

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CRIMINAL LAW – Appeal – Conviction – Historical sexual offending – Crown concession on one appeal ground – Whether trial unacceptably unfair and amounting to substantial miscarriage of justice – Whether prejudice by earlier civil proceeding on subject matter of criminal proceeding – Presumptive prejudice – Applicant gave discovery and evidence at civil trial unaware and unsuspecting of criminal proceeding – Applicant practically deprived of right to silence in accusatorial criminal proceeding – Actual prejudice – Civil proceeding informed criminal investigation and preparations for criminal trial – Evidence in civil proceeding deployed against applicant and witnesses in criminal proceeding – Jury aware of compensation to complainant in civil proceeding – Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46, X7 v Australian Crime Commission (2013) 248 CLR 92, Construction, Forestry, Mining and Energy Union v Australian Competition and Consumer Commission (2016) 242 FCR 153, considered – Whether prejudice by 56 to 57 year delay – Presumptive and actual prejudice by reason of extreme delay – Morton v The Queen (2020) 281 A Crim R 307, McGee v The Queen [2020] VSCA 146, considered – Appeal allowed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms C A Boston with	Doogue & George
Dr M Fitzgerald
For the Respondent	Ms M Mahady with Ms J Warren	Ms A Hogan, Solicitor for Public Prosecutions

McLEISH JA
NIALL JA
T FORREST JA:

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.
[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.
[3]Contrary to common law.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lucciano v The Queen

Details

AGLC: Ortensio Lucciano (a pseudonym) v The Queen [2021] VSCA 12
Case: [2021] VSCA 12
Decision Date: 1 February 2021

CaseChat Overview and Summary

Lucciano v The Queen is an appeal against conviction, where the appellant, Lucciano, contested the fairness of the trial process and the impact of a preceding civil proceeding on the criminal proceedings. The dispute involved historical sexual offences, and the case was heard by the court of appeal.

The central legal issues in the appeal were whether the trial was unacceptably unfair, amounting to a substantial miscarriage of justice, and whether there was prejudice caused by the earlier civil proceeding. Specifically, the appeal focused on the applicant's lack of awareness of the criminal proceeding when giving discovery and evidence in the civil trial, which deprived them of the right to silence in the criminal trial. Furthermore, the appeal examined whether the significant delay between the alleged offences and the trial caused a prejudicial impact.

The court of appeal found that the trial was unacceptably unfair and amounted to a substantial miscarriage of justice. It determined that there was presumptive prejudice due to the applicant's lack of awareness of the criminal proceeding when participating in the civil trial. The court also found actual prejudice because the evidence from the civil proceeding was used against the applicant and witnesses in the criminal trial, and the jury was aware of the compensation awarded to the complainant in the civil proceeding. Additionally, the court held that there was presumptive and actual prejudice due to the 56 to 57-year delay between the alleged offences and the trial.

As a result of the appeal, the conviction was quashed, and a retrial was ordered. The court of appeal's decision recognised the significant impact of the earlier civil proceeding and the lengthy delay on the fairness of the trial, leading to the allowance of the appeal.

Orders