Concurrent civil and criminal proceedings – ‘right to silence’ & stay

Hamilton Island Enterprises Ltd & Anor v Johnston [2010] QCS 38


Civil proceedings for damages for breach of contract of employment, conversion, or alternatively equitable compensation had been first commenced. Subsequently, 22 police charges under the Criminal Code 1899 (Qld) relating to the applicant’s employment were laid with a further 14 charges shorlty before the application. An  application was brought to relieve the defendant from pleading to the civil claim on the basis it would abrogate the defendant’s right to silence and as against self incrimination. His Honour McMeekin J noted the brief of evidence had not been delivered by the police and the committal date was some time off.

At paragraph 8 of the judgment his Honour applied the authority of McMahon v Gould (1982) 7 ACLR 202 at 206-207, and the factors to be considered:

(a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court;

(b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper ground;

(c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff’s ordinary rights should be interfered with;

(d) Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

(e) The court’s task is one of “the balancing of justice between the parties”, taking account of all relevant factors;

(f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;

(g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused’s “right of silence”, and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding.

(h) However, the so-called “right of silence” does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding;

(i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings;

(j) In this regard factors which may be relevant include:

(i) the possibility of publicity that might reach and influence jurors in the civil proceedings;

(ii) the proximity of the criminal hearing;

(iii) the possibility of miscarriage of justice e.g by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;

(iv) the burden on the defendant of preparing for both sets of proceedings concurrently;

(v) whether the defendant has already disclosed his defence to the allegations;

(vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him;

(k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. It may be relevant to consider the nature of the defendant’s obligation to the plaintiff;

(l) In an appropriate case the proceedings may be allowed to proceed to a certain stage, e.g, setting down for trial, and then stayed.

Ultimately, his Honour stayed the civil proceedings until the committal stage in the first instance.

It is a useful summary of the relevant factors to consider in these somewhat usual circumstances.

Brisbane Barrister – David Cormack

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