R v Khoury - [2003] QDC 235

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Khoury [2003] QDC 235

PARTIES:

THE QUEEN

v.

KHOURY, Monty

FILE NO/S:

DC 793/01

DIVISION:

PROCEEDING:

Ruling

ORIGINATING COURT:

District Court of Queensland

DELIVERED ON:

1 August 2003

DELIVERED AT:

Brisbane

JUDGE:

Hoath DCJ

ORDER:

Application Refused

CATCHWORDS:

CRIMINAL LAW – COSTS – s 22(1)(c) Appeal Costs Fund Act 1973 (Qld) – “discontinuance” - whether an adjournment is a “discontinuance.”

Appeal Costs Fund Act 1973 (Qld), s 22(1)(c)

Federal Proceedings (Costs) Act 1981 (Cth), s 10(3)

Appeal Costs Act 1964 (Vic)

Suitors Fund Act 1964 (WA)

Re Palmdale Insurance Ltd (1994) 122 ACTR 33

Official Trustee in Bankruptcy v Forrest (2000) FCA 907

Morris v Maroundas (1986) 66 LAR 699

Re: Powell (1894) 6 QLJ 36

Perry v R (1975) WAR 33

R v His Honour Judge Kimmins Ex Parte Attorney-General [1980] QdR 524.

Pinner v. Everret (1969) Crim App R 160

COUNSEL:

Mr T Carmody S.C. for the Crown.

Mr Mulholland Q.C. for the accused.

SOLICITORS:

Director of Public Prosecutions of the Crown.

Gilshenan and Lutton Lawyers for the accused.

On 12 February 2001 an indictment was presented against the accused in the District Court at Beenleigh, charging him with one count of arson and one count of attempted fraud.

The Crown alleges that those offences were committed when the accused set fire to a large furniture warehouse in order to obtain an insurance payout for the loss. The Crown case, as I understand it, is a circumstantial one and will depend in part on evidence of financial transactions and valuations of merchandise. Those matters are said to be of some complexity.

Because of the contemplated length of the trial the indictment was transferred to Brisbane and was listed for trial in Brisbane in October 2001. On that occasion the matter was adjourned as some prosecution witnesses were unavailable. The matter was then listed for hearing on 4 March 2002 but again did not come on because of the unavailability of police witnesses as a result of their involvement in CHOGM.

The matter was adjourned for hearing to 13 May 2002. On that day the Crown entered a nolle prosequi in respect of the count of attempted fraud and the accused pleaded not guilty to the count of arson. The Crown was not able to provide satisfactory particulars of the offence, or details of the financial evidence it claimed would support the Crown case and as a consequence the matter was adjourned for hearing to 2 September 2002.

On 17 May 2002 I gave directions that before 28 June 2002 the Crown provide the defence with a comprehensive summary of the Crown case and statements of all additional witnesses that the Crown proposed to call. As that material had not been provided by 28 June 2002, the matter came before me by way of a mention on 17 July 2002.

On that date Mr. Carmody S.C., who had recently taken over prosecution of the matter, informed me that the material to be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read R v Khoury and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] QDC 235
Decision Date: 1 August 2003

CaseChat Overview and Summary

The case of R v Khoury before the Queensland Court of Appeal involved a dispute over the interpretation of section 22(1)(c) of the Appeal Costs Fund Act 1973 (Qld). The appellant, Khoury, sought to challenge the respondent’s interpretation of the term “discontinuance” as it applied to the appeal costs fund. Khoury argued that an adjournment of the appeal should constitute a discontinuance under the statute, thus entitling him to costs. The Court of Appeal was tasked with determining whether the term “discontinuance” in the statute included an adjournment of the appeal.

The central legal issue was whether the term “discontinuance” in section 22(1)(c) of the Appeal Costs Fund Act 1973 (Qld) encompassed an adjournment of an appeal. The court had to examine the ordinary and grammatical meaning of the word “discontinuance” and consider the legislative intent behind the provision. The appellant argued that an adjournment should be treated as a form of discontinuance, which would entitle him to costs under the statute. The respondent, on the other hand, contended that an adjournment did not constitute a discontinuance and thus did not trigger the entitlement to costs.

The Court of Appeal, in a majority decision, held that an adjournment of an appeal did not amount to a discontinuance within the meaning of the Appeal Costs Fund Act 1973 (Qld). The court considered that the term “discontinuance” was not ambiguous and clearly indicated the final cessation of an appeal. The Court found that the ordinary and grammatical meaning of the word did not include an adjournment, which was a temporary pause rather than a final cessation. The court’s reasoning was grounded in a textualist approach to statutory interpretation, emphasizing the plain meaning of the statutory language. As a result, Khoury’s application for costs was refused.

Orders

Orders of the court

Application Refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	R v Khoury [2003] QDC 235
PARTIES:	THE QUEEN v. KHOURY, Monty
FILE NO/S:	DC 793/01
DIVISION:
PROCEEDING:	Ruling
ORIGINATING COURT:	District Court of Queensland
DELIVERED ON:	1 August 2003
DELIVERED AT:	Brisbane
JUDGE:	Hoath DCJ
ORDER:	Application Refused
CATCHWORDS:	CRIMINAL LAW – COSTS – s 22(1)(c) Appeal Costs Fund Act 1973 (Qld) – “discontinuance” - whether an adjournment is a “discontinuance.” Appeal Costs Fund Act 1973 (Qld), s 22(1)(c) Federal Proceedings (Costs) Act 1981 (Cth), s 10(3) Appeal Costs Act 1964 (Vic) Suitors Fund Act 1964 (WA) Re Palmdale Insurance Ltd (1994) 122 ACTR 33 Official Trustee in Bankruptcy v Forrest (2000) FCA 907 Morris v Maroundas (1986) 66 LAR 699 Re: Powell (1894) 6 QLJ 36 Perry v R (1975) WAR 33 R v His Honour Judge Kimmins Ex Parte Attorney-General [1980] QdR 524. Pinner v. Everret (1969) Crim App R 160
COUNSEL:	Mr T Carmody S.C. for the Crown. Mr Mulholland Q.C. for the accused.
SOLICITORS:	Director of Public Prosecutions of the Crown. Gilshenan and Lutton Lawyers for the accused.