DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an application seeking a permanent stay of criminal proceedings against the applicant. The submission is that the Crown has been guilty of inexcusable delay in prosecuting the matter. It is submitted that the delay is unreasonable and, in the circumstances, amounts to an abuse of the criminal process such as to make it difficult for the accused to obtain a fair trial.

2. [2]
   It is necessary to set out the history of the matter.

History of the matter

3. [3]
   On the night of 12 September 1997 a fire destroyed a furniture factory and most of its contents.  The factory was leased to a company which was involved in the manufacture of furniture and the accused was a director of that company.  The factory was insured by its owners and the accused’s business was also insured.  The accused made an insurance claim in the sum of $1.88 million for loss of property and interruption to business as a result of the fire.

4. [4]
   Police investigated the matter and no charges were laid.

5. [5]
   The matter was considered by a deputy coroner who determined not to hold an inquest.

6. [6]
   At that time the accused was involved in litigation with his insurer over his claim. At the request of the insurer an inquest was held. That inquest commenced on 17 April 2000 and was completed on 24 August 2000.  The accused was privately represented on the coronial inquest.  At the conclusion of the inquest the accused was committed for trial.

7. [7]
   On 12 February 2001 an indictment was presented in the Beenleigh District Court alleging one count of arson and one count of attempted fraud against the accused.  On 23 March 2001 the indictment was transferred to Brisbane for trial.

8. [8]
   The matter was listed for trial in Brisbane in October 2001. On that occasion the matter was adjourned as some prosecution witnesses were unavailable.

9. [9]
   The matter was then listed for trial on 4 March 2002 but again did not come on because of the unavailability of police witnesses as a result of their involvement in the 2002 Commonwealth Heads of Government Meeting.

10. [10]
    The matter was again listed for trial to commence on 13 May 2002.  On that day the Crown withdrew the charge of attempted fraud and the accused pleaded not guilty to the count of arson.  On 3 May 2002, in the lead up to the trial, the defence had provided an expert report from a Mr R Kahler as to the possible causes of the fire (Exhibit H).

11. [11]
    The trial commenced before His Honour Judge Hoath. The accused was privately represented by Senior Counsel. After some argument, it was determined that the Crown was not able to provide satisfactory particulars of the financial evidence it claimed would support the Crown case. It should be noted that the Crown case is a circumstantial one and financial motive in the accused for setting the fire would be an important part of the Crown case. The Crown could not point to specific evidence which indicated the benefit to the accused of the fire and the insurance claim in terms of whether or not the accused’s business would be “better off” as a result of the fire.

12. [12]
    Hoath DCJ noted in the course of argument,

“The Crown really, it appears to me, at this stage in relation to that financial evidence, cannot clearly put its case … it is referred to as being inarticulate, but it is really incomprehensible.”  (Transcript at p.24). 

The matter was adjourned to 15 May 2002.  The Crown Prosecutor, Mr Vasta, was to consider whether he would be in a position to proceed on that date.

13. [13]
    The matter could not proceed on 15 May 2002 and was again mentioned before Hoath DCJ on 17 May 2002.  On that date the matter was given a new trial listing on 2 September 2002.  Hoath DCJ also ordered that the Crown was to provide the defence with a comprehensive summary of the Crown case on or before 28 June 2002 and that the Crown was to provide all additional witnesses’ statements on or before 28 June 2002.  On the mention Mr Vasta indicated that he would be unable to continue with the prosecution because of other commitments and that a new prosecutor would need to be assigned.  His Honour Judge Hoath noted,

“I can’t tell the director how to run their office, but perhaps it could be conveyed to whoever is responsible for this matter that obviously tens of thousands of dollars, if not hundreds of thousands of dollars have already been invested or spent in investigating this matter and conducting a coronial enquiry.  It’s an arson based on an allegation of fraud involving over a million dollars, but somebody should be briefed at this stage that can look at the matter and at least spend a week and get it into order at an early stage.”  (Transcript p.3).

14. [14]
    The material ordered to be supplied by 28 June 2002 was not supplied and the matter came on for mention before Hoath DCJ on 19 July 2002.  On that date Mr Carmody SC appeared for the prosecution.  He informed the court that the material to be provided by the Crown was unlikely to be available in time for the defence to be in a position to proceed to trial on 2 September 2002.  The trial was adjourned to a date to be fixed in November 2002.  Senior Counsel for the accused then made an application for an indemnity certificate for costs under s 22(1)(c) of the Appeal Costs Fund Act 1973 (“the Act”).  That application was ultimately refused as the leaned trial judge determined that the adjournment was not a “discontinuance” within the terms of the Act.

15. [15]
    Hoath DCJ noted in his reasons for refusing the certificate (Exhibit D) that in relation to the adjournment of the trial in May 2002, that the Crown had not been able to provide satisfactory particulars of the offence or details of the financial evidence it claimed would support the Crown case.  He also noted that the reason that the accused’s trial had to be adjourned from September 2002 to November 2002 was not attributable in any way to the act, neglect or default of the accused or his legal representatives.  He noted,

“It should be recognised that any oppression to an accused by adjournments which occur through no fault of the accused and which result in the accused in incurring substantial costs can be constrained by the court refusing to grant the Crown a further adjournment.”

16. [16]
    On 19 July 2002 at the mention Mr Carmody SC said,

“I have read the previous orders that you’ve made, and the Crown has told me reasonably, after Mr Mulholland, what was expected, and I have to confess immediately that I am not in a position to say that my learned friend now has all the statements from witnesses who are likely to be called, or that the outline of evidence for the prosecution that has been delivered is exactly the case that I would present at trial.  I know enough about the material now to know that there are some areas that have been identified to me that I would want further investigated, and the emphasis on some of that evidence would change, but it really only does effect the financials, and I know that’s not what you wanted to hear, but that’s – that’s the position I’m in.”

He also stated that if he was forced on he would have a case based on the Crown summary of evidence which had been produced in the interim (Exhibit E).  Hoath DCJ commented that the case was still not complete.  Mr Carmody agreed and noted that he would be dependent on financial analysts to prove a financial motive.  That would take some weeks and the defence would not be supplied with ancillary statements until shortly before the trial listed in September 2002.  Mr Carmody noted, “… the history of this matter is not something to be proud of …”.  Mr Mulholland QC for the accused again stressed the history of the matter including the three previous trial listings and requested a temporary stay of the prosecution until the defence could be assured that all Crown witnesses’ statements had been supplied and the accused would know the case he had to answer.  He noted that Mr Carmody had not been made aware of the court orders made on 17 May 2002.

17. [17]
    Hoath DCJ noted,

“Mr Mulholland, I share most of the sentiments you’ve expressed.  I’m not minded to temporarily stay the indictment.  My present view is to list the matter some time in November with an indication that, if it’s not in a position to proceed at that time, then the matter could well be permanently stayed.  Now – and that will be on the basis that the material that has been requested up to the present time be given to the defence in a sufficient time to enable them to properly appraise that material and prepare their defence in respect of it. …  I just don’t want to leave the matter in limbo.  If it comes up again my present attitude would be to permanently stay the indictment.  Now that’s on the record.  If the Crown don’t do anything about it, they’ve got nobody else to blame but themselves.  That will finish it once and for all.”

18. [18]
    Hoath DCJ adjourned the trial to come on in November 2002. He also stated,

“If it doesn’t come on this time, as I indicated, I would be minded to permanently stay the indictment.”

19. [19]
    On 2 August 2002 the matter came on for mention before Hoath DCJ to obtain a listing date. At that date the accused’s solicitors were granted leave to withdraw. The accused represented himself. Although the accused requested a trial date in 2003, Hoath DCJ set the trial to commence on 18 November 2002.  The accused sought an order that the Crown disclose its case at a time prior to the trial so that he could prepare his case.  Hoath DCJ ordered that the material was to be supplied to the accused by 16 August 2002.  Hoath DCJ stated to Mr Godbolt who appeared for the Crown,

“Mr Godbolt would you convey to Mr Carmody the seriousness of this matter … I have indicated in the past I am contemplating or have contemplated staying the indictment if it continues much longer … It is a serious matter and it is a matter that should have been attended some time ago.”

20. [20]
    On 16 August 2002 the matter was again mentioned before Hoath DCJ.  Mr Carmody advised that the Crown would proceed on 18 November 2002.  He indicated that he had recently received a further report from a financial analyst and that that had not changed things much.  He indicated that the trial would proceed on the material provided.  He noted that it would be unfair to extend (the time of the trial) any further and it would require a substantial investigation.  Mr Carmody indicated that all the Crown material had been provided to the accused.  The accused commented that,

“There’ll be no surprises.  There’ll be nothing further added to that material, so I’m hoping we can just proceed on that basis.”

The trial remained as listed to commence on 18 November 2002. 

21. [21]
    On 8 November 2002 the matter came on before me for mention as I had been assigned the trial to commence on 18 November 2002.  It had been indicated to me in chambers that the reason Mr Khoury was representing himself was that he had insufficient funds.  I was assured that there was a real possibility that Mr Khoury would have sufficient funds to again retain his lawyers by the New Year (2003).  The Crown agreed that it was appropriate that Mr Khoury be represented on the trial.  In those circumstances I delisted the trial from 18 November and on 26 November 2002 re-listed the trial to commence before myself on 12 May 2003.

22. [22]
    On 2 May 2003 the matter was mentioned before me.  Mr Carmody SC again appeared for the Crown.  The accused was again represented by Mr Mulholland QC.  The Crown applied to have the matter delisted.  The arresting officer was unavailable (owing to commitments in another case).  Mr Carmody stated that there was also a “lot of financial evidence, a lot of reconstruction of accounts which are incomplete”.  He stated that the Crown had only recently received a number of documents from the administrators of various of the companies with which the accused had previously been involved, the solicitors for the insurer and the insurer.  The Crown had previously sought those documents and had heard nothing about them until 3 April 2003.  What was described as “thirteen boxes of documents” had been delivered to the Crown between 3 and 9 April 2003.  The arresting officer and the financial advisers had not had an opportunity to inspect these documents.  Mr Carmody agreed that any motive in the accused was an important factor in the Crown’s circumstantial case.  It had also been indicated to the Crown that the administrators may also have had other documents of relevance which had not, as yet, been provided.  The Crown was not in a position to say whether there was any material which may have been exculpatory for the defence.

23. [23]
    Mr Mulholland QC stressed that one year earlier he had stood in front of Hoath DCJ when the defence did not know what the Crown case was in critical areas. He stated that Mr Khoury had expended a great deal of money preparing for the trial in May 2002 as a result of which he was severely financially disadvantaged. He indicated that the defence was under severe financial restrictions and could not endure the situation if the trial over-ran because of unforeseen evidence. He suggested that the court exercise case management over the matter to ensure the matter was properly and speedily prepared.

24. [24]
    I delisted the trial and the Crown indicated that it would need a further six weeks for a financial analyst (Mr Bennett) to assess the new material. I listed the matter for mention on 6 June 2003 to review its progress and set a new trial date.

25. [25]
    On 6 June 2003 it was indicated that Mr Carmody SC had been appointed to the Bench and attempts were being made to reassign the matter.  It was indicated by Mr Quinn, solicitor for the accused, that both sides were still in the position of not knowing what their cases were.  I adjourned the matter to 18 July 2003 so that a prosecutor could be briefed and the court and defence informed as to what was happening.

26. [26]
    On 18 July 2003 I was informed that a new prosecutor, Mr M Byrne, of the Southport DPP’s office had been appointed to the trial.  He was to commence an appointment to the Brisbane office in August 2003 and would commence preparation of the case then.  The Crown requested that the matter be further mentioned in September so that the prosecutor could “get his head around the file and some constructive discussions can be had.”  I adjourned the matter for further mention to 12 September 2003 as I was informed this would give the Crown sufficient time to prepare the matter.

27. [27]
    I also said to the Crown prosecutor on the mention,

“… The matter’s dragged on for a number of years and I haven’t examined it in any great detail but when Mr Byrne comes to consider it, it may be that the Crown really needs to look at whether they should proceed or not because it’s had at least one false start and the Crown wasn’t able to particularise exactly what their case was as I understand things.”

28. [28]
    On 12 September 2003 I was advised there had been no progress.  The prosecutor allocated to the matter had not been in a position to consider the material.  Mr Byrne was still assigned the matter and I noted that until the Crown decided what its case was then the matter could not be listed as, for a start, no estimate of trial length could be given.  It was also indicated that my remarks of 18 July had not been passed on to Mr Byrne.  I repeated them.  I said,

“… This has got a long history, including a start once before when the Crown couldn’t particularise what its case was.  The indictment was presented in March of 2001.  The trial has been adjourned on a number of occasions and still the Crown is not in a position to indicate to the defence what its case is.  I understand a large amount of material was only discovered this year.  In my view, the Crown should think seriously about whether they are going to proceed in relation to this matter considering its history and considering the state of the case against the accused.”

29. [29]
    On 10 November 2003 the matter was again mentioned before me.  The defence solicitors advised me that they had been informed on the Thursday before that the Crown intended to proceed with the matter.  The defence indicated that it would be applying for a permanent stay.  The matter was listed for further mention to obtain availability dates for counsel for the listing of that stay application.

30. [30]
    On 8 December 2003 it was indicated that the defence had spoken to Mr Byrne and that February or early March 2004 would be suitable.  I listed the matter for 11 March 2004.

31. [31]
    Shortly prior to 11 March 2004, I was advised that the Crown prosecutor, Mr Byrne, would not be available on 11 March 2004 owing to other court commitments.  With defence consent the application was listed to be heard on 25 March 2004.  Again Mr Byrne was unavailable and Mr Vasta was briefed on the Tuesday before the application was heard.  Mr Vasta had been the prosecutor at the aborted trial in May 2002.

The application to permanently stay the indictment

32. [32]
    Mr Mulholland QC submitted that since the trial was adjourned in May 2002 because of the Crown’s inability to frame its case, there had been no progress. The “Crown summary of evidence” (Exhibit E) did not supply information as to financial motives as foreshadowed by the Crown at the trial before Hoath DCJ.  At the mention on 19 July 2002 a new prosecutor indicated that the financial aspects required further investigation and the “Crown summary of evidence” may not reflect the Crown case he intended to present.  Although other statements had been mentioned by prosecutors none had been supplied to the defence.  At the mention of 2 May 2003, the Crown prosecutor indicated that a large quantity of further documents would need to be analysed.  No statement concerning that material was provided to the defence until the day before the application for the permanent stay.  The document from Mr Bennett (part of Exhibit C) did not appear to be a final document and indicated further avenues of enquiry were to be undertaken.

33. [33]
    Mr Mulholland QC submitted that the facts involving the delay in this case were extraordinary. The trial date in May 2002 had been set months in advance and yet the Crown was unable to articulate a critical area of its case. Since that time the matter had not progressed any further despite clear warnings to the Crown by the court. It was submitted that the Crown had been guilty of inexcusable delay in prosecuting the matter. The defence had been unable to properly prepare for trial and still did not know what case it was required to meet. The accused has been subjected to substantial delay, disruption to his business and a huge financial and emotional burden to himself and his family. Mr Mulholland QC submitted that the accused had expended in excess of $200,000 in relation to both the coronial inquest and the District Court proceedings (transcript p.10). This was not challenged by the Crown. Mr Mulholland QC submitted that the prosecution should be stayed as an abuse of process.

34. [34]
    Mr Vasta submitted that at the trial in May 2002, he had been unable to quantify how much better off the accused would be with the insurance claim, or which items had been overstated in value for the purposes of the insurance claim. He submitted that the delay in this matter was regrettable. It was the result of the size and complexity of the case, the need for continuity of Senior Counsel and the intrusion of other aspects of the legal system. He submitted that none of these matter occurred with any apathy or bad faith to the accused. He submitted that the accused had not demonstrated any prejudice to his defence or that he would be deprived of a fair trial.

35. [35]
    Mr Vasta indicated that he was now the allocated Crown prosecutor. The further financial investigations had proved fruitless and the Crown’s case as to motive would be limited to the argument that the insurance policy contained a “reinstatement and replacement clause” where a claimant was entitled to the new price of any damaged property regardless of its age and that the accused must have been in a better position financially because of that clause where he was stockpiling furniture and did not have a market for it. This was different from the motive postulated in the “Crown summary of evidence” (Exhibit E) which suggested that the accused was valuing his stock at a greater value than it was worth.

36. [36]
    Mr Vasta agreed that the report by Mr Bennett as to examination of the “new” documents was a work-in-progress but that no further investigations could proceed. The Crown would not be in a position to say what the accused’s overall financial position was. Mr Mulholland QC responded that after two years delay, the Crown had returned to where it should have been on the trial in May 2002.

37. [37]
    During the course of the application it emerged that the defence forensic report (paragraph 10 above) was sent to one of the Crown’s forensic experts (transcript p.2, 26 March 2004).  A copy of it was not on the Crown brief and Mr Vasta was not sure if Mr Carmody was aware of it.  Mr Byrne was not aware of Mr Kahler’s report.  He also was not aware of 13 boxes of material provided to the Crown in early 2003 (transcript p.3).  Mr Byrne had decided that the prosecution would proceed although he had not considered all the material.

Jurisdiction to grant a permanent stay of proceedings

38. [38]
    The court has jurisdiction to grant a stay of a criminal prosecution to prevent an abuse of process or the prosecution of a criminal proceeding which will result in an unfair trial (Barton v R (1980) 147 CLR 75;  Jago v The District Court of New South Wales (1989) 168 CLR 23.)  The jurisdiction to prevent an abuse of process extends to cases where the courts processes may be converted to instruments of injustice or unfairness (Walton v Gardiner (1993) 177 CLR 378;  Rogers v R (1994) 181 CLR 251).

39. [39]
    The courts’ power to stay indictments is based upon the principle that the court should control its own processes, and stop prosecutions which are unfair or oppressive, or that might bring the system of criminal justice into disrepute and which would undermine public confidence in the system.

40. [40]
    The principles to be applied in considering whether a stay should be granted because of delay was set of by Mason CJ in Jago v The District Court of New South Wales (above),

“The test of fairness which must be applied involves a balancing process, for the interests of the accused cannot be considered in isolation without regard to the community’s right to expect that persons charged with criminal offences are brought to trial …  At the same time, it should not be overlooked that the community expects trials to be fair and to take place within a reasonable time after a person has been charged.  The factors which need to be taken into account in deciding whether a permanent stay is needed in order to vindicate the accused’s right to be protected against unfairness in the course of criminal proceedings …  will generally include such matters as the length of the delay, the reasons for the delay, the accused’s responsibility for asserting his rights and, of course, the prejudice suffered by the accused … In any event, a permanent stay should be ordered only in an extreme case and the making of such an order on the basis of delay alone will accordingly be very rare …”

41. [41]
    Mason CJ’s reasons in Jago were referred to with approval by the majority in Walton v Gardiner (above), which added,

“As was pointed out in Jago, the question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations.  Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.”

42. [42]
    The remedy of a permanent stay is thus one that should only be ordered in an extreme case. A stay of a criminal trial will normally be ordered only on the ground of an abuse of the criminal process which will prevent or make it difficult for an accused to obtain a fair trial. Matters of inordinate delay or steps positively taken to impede the presentation of a defence would enable the jurisdiction of a court to stay the trial: R v Smith [1997] QCA 111 at pp.8-9 per Ambrose J (Davies JA and White J agreeing).

Discussion

43. [43]
    The matter has obviously a long and sorry history. It has had five trial listings which have not proceeded. Only one of those adjournments was at the request of the accused. The reason for that adjournment was that the accused was not in a financial position to continue to retain his lawyers. The Crown agreed that it was advisable that he should be represented. The accused had privately retained lawyers for the trial which should have proceeded in May 2002. All other adjournments were to suit the Crown’s convenience and, indeed, one trial adjourned after it actually commenced as the Crown was unable to properly particularise its case.

44. [44]
    The court has indicated on a number of occasions that proper resources should be assigned by the Crown to the preparation of this matter. Warnings were given about a stay as long ago as 19 July 2002 if the Crown could not properly articulate the case.

45. [45]
    Considerable time has passed without the Crown advising the defence of the particulars as to any financial motive it wished to propound as part of its case. It was apparently only the listing of the stay application which occasioned some activity in advising the defence of any financial analysis (statement of Mr Bennett which forms part of Exhibit C).  As referred to above, that statement indicates further enquiries are needed, although now the Crown has indicated they are unable to be undertaken.  Indications to the court of appropriate timeframes for enquiries and disclosure have not been met.  Court orders as to disclosure have not been followed. 

46. [46]
    The matter has passed through the hands of several prosecutors. An important document has not been placed on the prosecution file nor brought to the attention of later prosecutors. One prosecutor was not informed of previous court orders as to disclosure. One prosecutor, who had charge of the matter for a considerable period, and who made a decision that the matter was to proceed, was not even aware of the existence of the “thirteen boxes of documents” which occasioned the Crown to seek an earlier adjournment of the trial and an undertaking by the then prosecutor that that material would be considered within a period of six weeks.

47. [47]
    I intend no criticism of individual prosecutors. They were all obviously assigned other important cases during the relevant periods. One was appointed to the Bench and the matter needed to be re-briefed. Obviously, newly discovered material had to be appropriately examined to determine its relevance. In my view there has however been inexplicable (indeed inexcusable) delay in the Crown preparing this matter for trial. The Crown, with respect to any financial motive, only on the day of the stay hearing, stated that its position would be to argue that it would rely on the “reinstatement and replacement clause” provision to argue motive. This could well have been the position if the matter had been properly prepared for the May 2002 trial. The intervening period of almost two years has come to nothing.

48. [48]
    Whilst this is obviously a serious criminal charge and there is legitimate public interest in the resolution of such a matter in a trial, that is also an additional reason why appropriate resources should have been assigned to the matter by the Director of Public Prosecutions to properly prepare it. In my view, this clearly has not occurred. This was also in the face of clear warnings by the court of the necessity to address the matter in a timely fashion.

49. [49]
    It is also important to recognise that the delay has impacted on the accused’s ability to fund his own defence. On one occasion his solicitors withdrew as a result of those funding difficulties. The accused was in a position to stand his trial, while appropriately represented, in May 2002. It was the Crown’s inability to particularise its case which caused that trial to adjourn. The charge has been hanging over the accused’s head for a number of years. The emotional and financial prejudice to the accused because of the various delays also needs to be assessed in the decision as to whether to order a stay.

50. [50]
    The simple fact of the matter is that the matter should have been ready for trial in May 2002. The matter had already had two trial listings which were adjourned at the Crown’s request. In May 2002 the Crown should have been in a position to properly particularise its case.

51. [51]
    Given the history of the matter, the various financial investigations should have been conducted in an expeditious manner. It had not ever been conveyed to the accused what the complete Crown case was that he had to answer. That is notwithstanding the substantial period of time that has elapsed.

52. [52]
    I am of the view that the extended delay and the continued inability of the Crown to properly particularise its case with respect to motive are sufficient to fall into that exceptional class of cases that amount to an abuse of process. In my view the accused has been severely prejudiced by the way this matter has been handled such that the continued prosecution of this matter would be oppressive. It should be noted in this regard that the fire at the centre of these allegations occurred in September 1997. The Crown has had a significant period of time in which to establish its case and properly inform the accused of the nature of the allegations to be brought against him.

53. [53]
    I will allow the application. I order that indictment number 793 of 2001 against Monty Khoury be permanently stayed. The indictment is to remain on the court file and is not to be further proceeded with.