R v Seymour[2024] QDC 93

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   The applicants, Mr Seymour, Mr Doumani and Mr Pappas are charged on indictment with numerous counts of fraud, some counts with a circumstance of aggravation.  The current indictment was presented following a successful stay application brought by Jack Doumani who was charged in respect of the same or similar frauds as a party taking account of his different role.  The earliest of the alleged offending is said to have occurred almost 12 years ago in May 2012 with most of it alleged to have occurred in 2013 or 2014 and some in 2015 with one count (Count 34) concerning alleged conduct in January 2017.  The applicants were first charged over eight years ago.  The investigation commenced in early 2013.^[1]
2. [2]
   It is clear that the charging occurred somewhat incrementally over a number of years.  Numerous requests for particulars have been made which are referred to both in the chronology and in my earlier ruling.  It is also appropriate to record that Magistrate Callaghan dismissed all the charges which had been laid by 19 July 2018 for reasons that I have previously recorded.  The defendants were subsequently recharged in respect of the same facts.  Otherwise, given my earlier ruling it is unnecessary to set out anything further as to the background of the matter.
3. [3]
   The applicants apply pursuant to s 590AA of the Criminal Code Act 1899 (Qld) (“Criminal Code”) for an order that the indictment be permanently stayed.
4. [4]
   The grounds relied upon are very similar to those underlying the previous stay application.  Indeed, the applicants submit that the arguments made on the previous occasion applied to the other defendants as well and that it might have been thought that the Crown would discontinue the case against the other defendants.  The Crown did discontinue the case as against some of the other defendants other than the current applicants.  The Crown submits that a distinction was drawn such that proceedings against all those defendants where the pathways to guilt relied on similar reasoning and evidence to Jack Doumani were discontinued.  The remaining cases, so it is submitted, are against the principals only.
5. [5]
   In July last year following the earlier delivery of my previous ruling, the Crown presented a new indictment and provided particulars and submissions.  The applicants’ position is that the new particulars remain seriously deficient.  In addition,  whether or not that is so, it is submitted that the critical issue is whether in light of all that has happened over the last eight years the Crown should be allowed to continue to prosecute the applicants even on the assumption that it has been able to fashion an adequate set of particulars.  I should also record that the Crown made clear it would not seek further time to amend the current particulars and that is concedes that, that step would be contrary to the position adopted in my previous ruling.

Facts

6. [6]
   It is alleged that the applicants were involved in a business selling fictitious products or services said to improve the prospects of successfully gambling, at least in broad terms.  The Crown case is that there were no such products or services.  Although the Crown has previously described the case as being about selling a fiction, that is not something which appears from the particulars now and the Crown indicated that would not be part of its case going forward.  This makes it somewhat difficult to understand what the Crown case really is when it is tied, as it is in the particulars, to a rather formulaic recitation of misrepresentations which seem of themselves, in large part to be of no particular moment, at least in some circumstances - representations such as to who is whose boss  and so on.   Customers who were persuaded to buy a product or service would transfer money to an account operated by the businesses.  Complaints commenced in 2010 and the businesses changed names to avoid the impacts of that negative publicity.  Following the presentation of the new indictment the total amount involved in the alleged fraud is approximately $2.35 million.

The structure of the Crown Case

7. [7]
   The previous indictment and particulars sought to group various allegations by reference to the corporate structure under which the products and services were offered.  There were then charges in relation to those in the sales team as principals and otherwise as to those in the management team by way of the party provisions.  As I have mentioned, the Crown has sought to discontinue in respect of all defendants other than principals.  The structure which is now adopted is such that each count reflects a complaint made by a particular investor.  The particulars are described as intended to identify:

   1. The relevant act being a representation by one or more of the applicants;
   2. The resulting investment; and
   3. The circumstances in which the act was dishonest to their knowledge.

Parties’ submissions

Submissions of the applicants

8. [8]
   The applicants submit that:

3. (a)
   The Crown contention that the prosecution should be allowed to proceed because it has rewritten its particulars is doubly flawed.  First because the particulars remain seriously deficient and, secondly, because the question is not appropriately limited to whether or not the particulars are now sufficient to allow the defendants to proceed to trial;^[2]

3. (b)
   While there is a strong public interest in the prosecution of crime, “it is not the purpose of the criminal law to punish the guilty at all costs”;^[3][4]

3. (c)
   The features as to what is described as repetitive charging and repetitive requests for particulars together with the enormity of the brief making the necessity for adequate particulars even more so in this case than others together with repeated failed attempts to provide adequate particulars are the critical aspects of the background to this application;^[5]

3. (d)
   Specifically as to the failure to adequately particularise the case, this was not limited to the problems with the case identified as against Jack Doumani and instead affected the way in which the entire case was put and it was not properly particularised against anyone;^[6]

3. (e)
   As to the relevance of the stay in respect of the application brought by Jack Doumani, that the case particularised against the applicants suffered the same alleged defects and difficulties as the case particularised against Jack Doumani and thus the representatives of all of the defendants proceeded on the basis that this application was representative of the position of all accused;^[7]

3. (f)
   It is oppressive to continue to prosecute the applicants in circumstances where:

3. (i)
   The applicants have been subject to legal proceedings for over eight years with the requirement that they fund those proceedings and have been subject to significant constraints upon their freedom owing to the conditions of their bail;^[8]

3. (ii)
   The committal proceedings had extended over 12 months because the prosecution had repeatedly failed to provide any adequate particulars and eventually abandoned any attempt to do so;^[9]

3. (iii)
   The Crown alleged the defendants were liable as principals and parties and in that way they were in the same position as Jack Doumani.  At no stage for the stay of Jack Doumani’s charges, did the Crown ever indicate that it intended to take a different approach against the present applicants or that they were abandoning their particulars in any way.  That only occurred after the stay was granted;^[10]

3. (iv)
   Consistent with the central theme of the submissions for the applicants it is submitted that they were in the same position as Jack Doumani such that it is now unjustifiably oppressive to allow the prosecution of the remaining defendants to proceed at all.  Their prosecution should have ended when Jack Doumani’s did.^[11]

3. (g)
   The prosecution has failed again to adequately particularise its case and it ought not be afforded a ninth opportunity to do so in circumstances where:

3. (i)
   It is claimed that all remaining defendants are liable as principals only but if that is so then the indictment breaches the principle that joinder of principal offenders in a single count is not permissible.^[12]  Counts 5, 7, 9, 10, 12, 14, 18, 23, 24 and 30 allege offences with multiple defendants.  Each of counts 5, 9, 18, 23, 24 and 30, appear also to allege single instances of inducements following representations from more than one applicant or allege the circumstance of aggravation which can only be alleged if it is intended to aggregate inducements in respect of different defendants.  In such circumstances it is difficult to see that the Crown does not purport to proceed against an applicant as a party yet none of the relevant facts to such an offence are particularised.  Its case was made clear though orally.  It is only as against principals and s 568(3) and (12) of the Code are relied on as permitting this course.  I return to this topic a little later;

3. (ii)
   There are other counts such as Count 14 where the circumstance of aggravation is alleged yet as concerns Mr Doumani there is no identified basis for that unless it is intended to make him liable for Mr Seymour’s conduct.  Count 5 on its face also alleges that Mr Seymour is responsible for a circumstance of aggravation despite his part as a principal being restricted to the sum of $10,000;

3. (iii)
   Count 9 is an example of a plea that a complainant acting on any of the representations made by two defendants transferred some money.  The defendants are Mr Seymour and Mr Doumani.  It is not clear on the face of the particulars whether it is the Crown’s case that if that investment was made acting only on the representation made by Mr Doumani  Mr Seymour is liable.  It appears though, given the Crown state clearly now that liability is only as to principals, that this must mean that two principals have been joined in the same count;^[13]

3. (iv)
   Count 10 raises further issues being the combination of cumulative or alternative representations arising out of the phrase “any or all” used in relation to two different applicants, meaning that in combination there ends up being approximately 10 different states of mind held, such that the result is hundreds of different pathways to conviction for each.^[14]  While there are complexities introduced by joining multiple principals in the same count, that complexity seems to me to have been completely unnecessarily introduced.  One way of reducing this issue would have been to tie the dishonesty to particular representations.  Taking count 10 as an example the representation attributed to Mr Seymour at 63(a) is that: he would help her recover losses from a previous program she used.  Presumably the dishonesty is alleged to arise because “Mr Seymour would not help her recover losses” (as set out in 72(a) and at the time he made the representation he had all of the states of mind alleged in particular 73.  But this could have been made explicit quite simply.

3. (h)
   As to the heads of dishonesty it is not clear whether an alternative approach is intended as it seems it is with the representations.  This could be easily clarified by, again, taking count 10 as an example alleging in relation to the representation at 63(a) that it was dishonest because of the matters set out in 72(a) if that is the Crown case and making it clear what the Crown position is also in relation to 73, that is, whether the approach in relation to that paragraph is cumulative;

3. (i)
   By way of conclusion, it is submitted that a stay ought to be granted because the applicants’ lives have been seriously affected over many years while the Crown has sought to subject them to unnecessary and deficient proceedings such that the only appropriate remedy in the exceptional circumstances of the case is a permanent stay.

Submissions on behalf of the respondent

9. [9]
   The respondent:

3. (a)
   Submits that consistent with the earlier ruling it has discontinued the case as against any defendants liable as a party and the current indictment is a case against principals only.  It seems in relation to a number of the counts that the Crown either seeks to proceed against an applicant on the basis of their liability as a party or it is not open to allege a circumstance of aggravation in relation to that applicant or an applicant is sought to be made liable for the representation of another applicant where alternative representations by multiple applicants are alleged or, as the Crown submits the applicants are only alleged to be liable as principals and if that is so then they are inappropriately joined in the same count for the reasons submitted on behalf of the applicants.  In this respect, in particular, I do not accept that s 568(3) or (12) permit the approach that has been taken of joining principals in terms of separate frauds in the same charge as opposed to in the same indictment.  Subsection 568(3) in my view clearly deals with charges against a person rather than multiple people;

3. (b)
   Submits that when one examines the delay in detail the most substantial delays since 2018 have been procedural or pandemic related and thus largely outside the control of the parties such that it could not be said to give rise to an unfairness that might result in a stay of a sufficiently particularised case.  The difficulty with that submission is that firstly it proceeds on the basis that the matter is sufficiently particularised.  In my view it is not. It includes defects such as joining principals in the same count, erroneous reliance on circumstances of aggravation, and the other uncertainties in approach I have already referred to.  That is, whether the voluminous number of potential pathways to guilt arise or whether they do not, but the position is unfortunately not clear, because the circumstances in which particular allegations as to dishonesty are relied upon is not clear in the way I have already referred to. Nor has there been any reference in the current particulars to the circumstantial facts from which the various alleged states of mind might be alleged to be an inference.

Relevant legal principles

10. [10]
    I set out the relevant legal principles in paragraphs [22] to [32] of my previous ruling and thus it is unnecessary to repeat them.

Further defects in the particulars

11. [11]
    Each of the particulars to the counts refer, when setting out the defendant’s state of mind, to “agreements reached” and an “agreement”.  It is said in each case that the defendant did not believe that the relevant corporate entity would comply with the agreement or intended the relevant corporate entity not to comply with the agreements reached.  Just what those agreements are is not identified in any of the particulars which is more than a little surprising in a case of this kind.  I am told though that the agreement is that signified by the combination of a particular representation and the making of a payment by a complainant.  The particulars with respect in general terms appear to me to have been prepared by cutting and pasting many terms and possibly by more than one author.  I say that because they contain multiple obvious grammatical or typing errors.^[15]  Further the particulars as to the transfer of funds are unhelpful in informing the reader as to what the Crown case might be.  For example, particulars 44 and 45 allege that Mr Walton transferred a sum of money to the company account on two dates.  A similar form is adopted in many other particulars for example 75 and 76, 102, 118, 134, 167, 168, 191 and 195.  Yet elsewhere the approach is taken of referring to a single sum of money and alleging that it was transferred to a company account across a number of transactions between stated dates.  That leaves the position with the first class of references as to inducements most unclear.  I was told that the position is a total sum was transferred across several dates, but that is not apparent from the particulars.
12. [12]
    The Crown submit that in terms of the delay there has been a committal hearing where Counts 1-33 were dismissed and otherwise two attempts to particularise a large case.  I do not accept that to be an accurate description of what has gone before in relation to this matter.  If nothing else, the present inadequate particulars follow the history set out in my previous ruling and ignore at least the reference I made there to it not being acceptable to leave out reference to the various circumstantial facts which will be sought to be relied upon by reference to the distinction between including facts and not evidence.  As I said before I do not consider that to be a distinction which can be universally adopted in a big complicated fraud case such as this.  It would not be permitted in a civil case and it is difficult to see why the position should be less onerous in a case where the applicants’ liberty is at stake rather than just money.
13. [13]
    The Crown did not concede that there were particular deficiencies with the particulars other than as to the circumstances of aggravation, and the matter I have just referred to as to the transfers of money.
14. [14]
    While in some respects this case at least at first blush is a simpler one than that considered in my previous ruling, I accept the criticisms made of the particulars by the applicants.  That they are defective after so much has gone before creates, in my view an atmosphere of oppression.   
15. [15]
    Of course, the current applicants were not parties to the application which led to my earlier ruling, however, the Crown appropriately conceded today that the particulars back at that time were defective as against these applicants as well.  That is of some significance today because in my view they remain defective.  The applicants take the position that had they applied then the case would have been stayed.  That submission is to some extent of course hypothetical.  The more important point in my view is that the particulars and indeed the indictment are defective after all that has gone before, including that application.

16. [16]
     In my view the appropriate order is that there being a permanent stay in circumstances where:

    1. Magistrate Callaghan struck out the proceedings after a committal hearing in 2018 on the same basis that this application is now brought – that is, the respondent’s failure to particularise the case against the applicants;
    2. particulars have been requested by the applicants on numerous occasions;
    3. the respondent has made five formal attempts to particularise the case against the applicants and has been very substantially unsuccessful;
    4. the proceedings have been ongoing for eight years;
    5. the DPP have been involved for approximately six of those years;
    6. the indictment concerns facts allegedly occurring as long ago as 2012;
    7. the applicants were first charged in relation to the bulk of the offending between 2015 and 2016;
    8. the case is factually large, with the brief of evidence exceeding 5 TB such that the defendants cannot be expected to trawl through the documents and work out what the respondent’s case is;
    9. Judge Holliday KC identified an issue with a previous version of the particulars at a mention on 24 November 2022, prior to the previous application being heard, but after it was filed. The Crown was provided with more time to produce further and better particulars in the face of that previous application;
    10. the resulting particulars from that process relevant to the previous application did not come close to what was required – they were general and did not particularise the case properly.  It even turned out that some of the conduct said to have been engaged in by the then applicant with knowledge of various matters was nothing more than an assumption;
    11. the Crown sought on the previous application to maintain a distinction between evidence and particulars which is simply not open in a case such as this one in terms of the obligation to inform the accused of the basis of the charges;
    12. it seems to me that there are numerous circumstantial facts which must be relevant to the alleged states of mind of each of the applicants which ought to be set out as would be required even were the case a civil one;
    13. given the concession that the particulars against these defendants were inadequate on the previous application, at the very least the Crown has had the benefit of another go to get to the point where we are now and the result remains unsatisfactory;
    14. there are still defects in the particulars some of which are extraordinary given the sort of care that should be applied to a large case of this kind after all that has gone before;
    15. I am very conscious that the purpose of the Court’s power is not to punish the prosecuting authorities but instead to prevent oppression.^[16]  In my view however, the case has got to the point where the oppression can only be prevented by taking the exceptional step sought.