Where a civil proceeding on the same subject matter as a criminal trial has been heard and determined before criminal charges are laid, and the accused gave evidence at the civil trial unaware of impending criminal proceedings, the accused is presumptively prejudiced by effective deprivation of the right to silence. This presumptive prejudice, combined with actual prejudice from prosecution use of civil trial material and extreme delay, may render a criminal trial so unacceptably unfair as to constitute a substantial miscarriage of justice. The decision also signals that prosecutions involving delays of 40-60 years should be rare.
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