April 2025

Private prosecutions are a powerful tool for seeking justice when the authorities cannot or will not tackle serious fraud matters. The process, if pursued correctly, can be more efficient and effective than action taken by law enforcement agencies. It allows the individual or corporate entity as prosecutor to draw on experienced, professional, and trusted investigators and lawyers to navigate the criminal justice system and take successful action to deter criminal activity and bring wrongdoers to justice.

While still viewed with suspicion here in Australia, in the UK, private prosecutions are an established means for victims of fraud and other crimes to ensure justice is done. Private prosecutions have played a crucial role in the UK justice system, allowing for cases to be brought forward that might otherwise be overlooked. As Andrew Marshall, Partner at specialist UK private prosecutions firm Edmonds Marshall McMahon, has noted, private prosecutions ‘allow victims to seek justice at a time when financial constraints are greater than ever, and police are often unwilling or unable to investigate complex crimes’.

However, recent high-profile cases, such as the Post Office scandal, have led to calls for greater regulation of private prosecutions to address the potential for miscarriages of justice. In early March 2025, the UK Crown Prosecution Service (CPS) announced it was undertaking a comprehensive review of private prosecutions. One of the primary aims of the review is to establish consistent oversight and regulation of private prosecutors.

It is important to remember that all prosecutions, both here and in the UK, start off as private prosecutions – charges are brought by an individual police officer, fisheries officer or council officer who has investigated the crime. It is only more serious offences that are ultimately taken over by the Crown and prosecuted on behalf of the public by entities such as the CPS or the Director of Public Prosecutions (DPP) here in Australia.

While it is unfair to tar all private prosecutions with the Post Office scandal brush, given these prosecutions were initiated by the Post Office itself and sometimes prosecuted by the CPS, the scandal is a reminder that criminal prosecutions require rigorous standards and procedures. The CPS review aims to establish a more structured framework to ensure that private prosecutions are conducted fairly and in the public interest, although one hopes such lofty aims will apply equally to ‘public’ prosecutions.

The review will also explore the potential for the CPS to take a more active role in overseeing private prosecutions. Currently, as is the case with the DPP here in Australia, the CPS has the authority to take over and either continue or discontinue a private prosecution as it deems necessary. The review suggests that this power should be exercised more frequently to prevent abuses of the system. Additionally, the introduction of a code of practice and an accreditation system for private prosecutors are among the recommendations aimed at improving accountability and transparency.

The final report of the CPS review of private prosecutions is to be released later in the year, and will hopefully strengthen public belief in the benefits of private prosecutions, both here and in the UK.

A number of large super funds were the target of a cyber-attack in early April. AustralianSuper said a total of $500,000 had been stolen from six of their accounts, whereas other funds like REST Super only had customer data and account information stolen. News of the cyberattack drove a spike in logins which stressed online systems and in some cases caused errors in the display of account information and balances.

Accounts at the affected funds were accessed through a technique known as ‘credential stuffing,’ where hackers steal passwords from ‘soft targets’ with low security and try to use the same credentials to access higher-value targets. This underscores the importance of having different login credentials across different platforms; using the password for multiple sites can leave your accounts open to access through credential stuffing.

Password management can be a frustrating task; it seems every product and service, from TV streaming to online banking and grocery shopping, now requires an account and password. It’s easy (and therefore tempting) to set the same passwords for multiple services, but this can leave your accounts vulnerable.

Password managers – online products and services which claim to securely store your account details and passwords – offer a solution to these frustrations. But how secure are they? The Australian Signals Directorate has published advice on password managers, saying that only reputable products should be used, 2-factor-authentication should be enabled, and your master key (to access the password manager itself) should be unique and not lost or forgotten.

As for the passwords themselves, the ASD prefers passphrases. These are longer and more complex, and therefore more secure. Rather than your password being your pet’s name, it could be a string of unrelated words, numbers or phrases. So maybe rethink Rufus2025 and go for something that would give a hacker a hard time.

Read more on the superannuation attack.
Read more on secure password managers.

The ATO alleges that former EY partner Peter White conducted illegal tax schemes, where clients’ profits were run through companies that had significant tax losses to wipe out payable tax. According to the ATO, White also failed to reveal to his clients his close relationship with benefitting companies, who often paid him commission for facilitating the schemes.

Read more

KROLL have released their 2025 Financial Crime Report, providing comprehensive and actionable insights into the complexities of financial crime. The report discusses how broad geopolitical tensions fuel financial crime; considers the challenges and opportunities of artificial intelligence; and presents a variety of other insights and perspectives. At Duxton Hill, we always strive to stay informed of global developments in financial crime which have the potential to affect our work, or impact our clients – and resources like KROLL’s report allow us to be on the front foot when working to deliver outcomes. You can download and read the report here.

Two recent cases in the Victorian Supreme Court of Appeal have considered the appropriate sentence for companies which pleaded guilty to workplace offences resulting in serious injury or death.

LH Holding Management was fined $1.3M after pleading guilty to workplace manslaughter. The DPP successfully appealed the fine as ‘manifestly inadequate’ and it was increased to $3M. In the second case, Dennis Jones Engineering (‘DJE’) was fined $2.1M after pleading guilty to recklessly endangering persons in a workplace after an incident left an apprentice with profound, life-altering injuries. DJE unsuccessfully appealed the fine as ‘manifestly excessive.’

In both cases, the court was forced to consider the potentially dire effect that large fines would have on the businesses. In LH Holdings the VSCA expressed their view that an offender’s capacity to pay cannot result in the imposition of a fine that fails to reflect the objective seriousness of the offence or the need for general deterrence. Thus, even if a fine is likely or certain to be ‘ruinous’ for a business, possibly affecting ongoing employment of other workers or the interests of shareholders, the court will nonetheless impose a fine proportionate to the gravity of the offence and need for deterrence.

In both cases, the willingness or ability of the offender to actually pay the fine was not a determinative consideration in the sentence imposed.

In 2008 Anthony Lewis misappropriated $570,000 from his deceased mother’s estate to a trading account with the investment company he controlled. That company went into liquidation in 2009, and the estate could not recover the funds. While bankrupt, Anthony sold his interest in his mother’s estate to HBSY. After discharge from bankruptcy, Anthony became the registered owner of the share capital of HBSY and sought his share of his mother’s estate.

The court in this case considered whether the administrator of the estate (Anthony’s father, the respondent Geoffrey Lewis) could withhold Anthony’s share of the estate from HBSY until Anthony rectified the consequences of his earlier misappropriation. Their Honours stressed the distinction between the Respondent’s current cause of action and one which might seek judgement against Anthony to pay the debt owing to the estate – that debt had been extinguished upon Anthony’s discharge from bankruptcy and therefore could not be pursued.

The court held that Geoffrey Lewis could withhold Anthony’s share of the estate because the court treated Anthony’s debt not as a ‘debt’ for the purposes of s153(1) of the Bankruptcy Act but as an ‘equity.’ Essentially, the ‘equity’ entitles the trustee (i.e. Geoffrey Lewis and the estate) to view the errant beneficiary as having already been paid the sum of their ‘debt’, and thus unable to recover that amount when the estate is distributed. In effect – because Mr Lewis had misappropriated funds to the sum of $570,000, it was taken that he had already been paid by the estate the sum of $570,000. In this construction, the ‘debt’ owing to the estate is not really a debt. Nonetheless it provides the trustee the right not to distribute further funds to the errant beneficiary unless they repay the amount that has already been ‘distributed’ to them.

Web3 Ventures allowed customers to loan out their cryptocurrency in return for a fixed rate interest payment. ASIC argued Web3 needed an Australian Financial Services Licence because they offered a ‘financial product.’ The court held that the service offered was not a financial product and the appeal was dismissed.

Two directors of Sunnya Pty Ltd were found to have breached the duty to act in good faith and for a proper purpose when they, anticipating being ousted from the company, attempted to divert business to other companies in which they had an interest.

A subsequent appeal was dismissed, with the court holding that fiduciary duties can extend beyond resignation, and that breaches may exist even when no benefit is obtained.

We are delighted to announce that Katie Miller has joined the Duxton Hill team. Katie is originally from the UK and is a qualified Solicitor in England and Wales. Katie previously worked in London for Edmonds Marshall McMahon, the first and only specialist private prosecution law firm in the UK, and the UK’s leader in the field of private prosecutions. Katie has extensive experience managing cases involving serious and complex fraud, counterfeit and intellectual property prosecutions and financial crime litigation from initial investigation through to trial. Katie has acted for corporates, individuals, and charities who have been the victim of all manner of frauds. We are excited to have Katie apply her knowledge and experience to a variety of matters at Duxton Hill.