R v Monty Khoury - [2004] QDC 182

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Monty Khoury [2004] QDC 182

PARTIES:

THE CROWN

v

MONTY KHOURY

FILE NO/S:

793/2001

DIVISION:

Criminal

PROCEEDING:

Pre-trial application

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

17 June 2004

DELIVERED AT:

Brisbane

HEARING DATE:

25 and 26 March 2004

JUDGE:

Shanahan DCJ

ORDER:

Indictment number 793/2001 be permanently stayed. The indictment is to be kept on the file and not be proceeded with.

CATCHWORDS:

CRIMINAL LAW – ARSON – PERMANENT STAY OF PROCEEDINGS – INEXCUSABLE AND UNREASONABLE DELAY IN PROSECUTION – ABUSE OF CRIMINAL PROCESS
Where the alleged offence of arson occurred in September 1997 – Where no charges were laid, and the deputy coroner determined not to hold an inquest – Where an inquest was eventually held at the request of the insurer – Where an indictment was presented in the Beenleigh District Court in February 2001 - Where five separate trial listings were not proceeded with for various reasons – Where a number of Crown prosecutors were assigned to the file over the years – Where the Crown had difficulty particularising its case – Where the accused had incurred considerable expense as a result of the delays and at one stage ran out of funds – Where the court had indicated on a number of occasions that if the Crown did not proceed expeditiously with the matter it might be permanently stayed – Where the matter was not fully investigated – Where court orders for disclosure were not met – Where a large amount of material was not made available until April 2003 – Emotional and financial prejudice – Whether the circumstances amounted to an abuse of process

Cases cited:

Barton v R (1980) 147 CLR 75

Jago v The District Court of New South Wales (1989) 168 CLR 23

R v Smith [1997] QCA 111

Rogers v R (1994) 181 CLR 251

Walton v Gardiner (1993) 177 CLR 378

COUNSEL:

Mr S Vasta for the Crown
Mr R Mulholland QC for the accused

SOLICITORS:

Director of Public Prosecutions for the Crown
Gilshenan & Luton for the accused

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.

It is necessary to set out the history of the matter.

History of the matter

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…

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.

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Details

Case: [2004] QDC 182
Decision Date: 17 June 2004

CaseChat Overview and Summary

The case of R v Monty Khoury was heard in the Supreme Court of Queensland, where the accused faced charges related to an alleged arson incident from September 1997. After the alleged offence, no charges were laid, and the deputy coroner decided against holding an inquest. Eventually, an inquest was held at the request of an insurer, leading to an indictment in the Beenleigh District Court in February 2001. Despite multiple trial listings, the case did not proceed due to various reasons, including difficulties in particularising the case by the Crown and issues with disclosure. The accused incurred significant expenses and faced financial difficulties due to the prolonged proceedings.

The legal issues before the court centred on whether the substantial delays and lack of investigation constituted an abuse of process, warranting a permanent stay of proceedings. The court considered the impact of the delays on the accused, including emotional and financial prejudice, and whether the Crown's inability to particularise its case and meet disclosure orders amounted to an abuse of the criminal process.

The Supreme Court concluded that the extensive delays and failure to investigate thoroughly had indeed led to an abuse of process. The court emphasised that the accused had suffered considerable prejudice, both financially and emotionally, due to the Crown's actions. It was determined that the circumstances warranted a permanent stay of proceedings to prevent further injustice. Consequently, the court ordered that the indictment be permanently stayed and not proceeded with, while keeping the indictment on file for potential future reference.

In summary, the court's decision was that the prolonged delays and procedural failures by the Crown amounted to an abuse of process, leading to the permanent stay of the indictment. The court recognised the significant prejudice to the accused and ruled that the proceedings should not continue. The final order was for the permanent stay of indictment number 793/2001, with the indictment to be retained on file without further proceedings.

Orders

Orders of the court

Indictment number 793/2001 be permanently stayed. The indictment is to be kept on the file and not be proceeded with.

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 Monty Khoury [2004] QDC 182
PARTIES:	THE CROWN v MONTY KHOURY
FILE NO/S:	793/2001
DIVISION:	Criminal
PROCEEDING:	Pre-trial application
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	17 June 2004
DELIVERED AT:	Brisbane
HEARING DATE:	25 and 26 March 2004
JUDGE:	Shanahan DCJ
ORDER:	Indictment number 793/2001 be permanently stayed. The indictment is to be kept on the file and not be proceeded with.
CATCHWORDS:	CRIMINAL LAW – ARSON – PERMANENT STAY OF PROCEEDINGS – INEXCUSABLE AND UNREASONABLE DELAY IN PROSECUTION – ABUSE OF CRIMINAL PROCESS Where the alleged offence of arson occurred in September 1997 – Where no charges were laid, and the deputy coroner determined not to hold an inquest – Where an inquest was eventually held at the request of the insurer – Where an indictment was presented in the Beenleigh District Court in February 2001 - Where five separate trial listings were not proceeded with for various reasons – Where a number of Crown prosecutors were assigned to the file over the years – Where the Crown had difficulty particularising its case – Where the accused had incurred considerable expense as a result of the delays and at one stage ran out of funds – Where the court had indicated on a number of occasions that if the Crown did not proceed expeditiously with the matter it might be permanently stayed – Where the matter was not fully investigated – Where court orders for disclosure were not met – Where a large amount of material was not made available until April 2003 – Emotional and financial prejudice – Whether the circumstances amounted to an abuse of process *Cases cited:* Barton v R (1980) 147 CLR 75 Jago v The District Court of New South Wales (1989) 168 CLR 23 R v Smith [1997] QCA 111 Rogers v R (1994) 181 CLR 251 Walton v Gardiner (1993) 177 CLR 378
COUNSEL:	Mr S Vasta for the Crown Mr R Mulholland QC for the accused
SOLICITORS:	Director of Public Prosecutions for the Crown Gilshenan & Luton for the accused