R v Seymour

Case [2024] QDC 93

DISTRICT COURT OF QUEENSLAND

CITATION:

R v Seymour & Ors [2024] QDC 93
PARTIES:

THE KING
(respondent)
v

DANIEL SEYMOUR, JOHN DOUMANI and CHRISTOPHER JOHN PAPPAS
(applicants/defendants)
FILE NO:

Indictment 455/2023

DIVISION:

Criminal

PROCEEDING:

590AA Application

ORIGINATING COURT:

District Court at Southport

DELIVERED ON:

22 April 2024 (ex tempore)

DELIVERED AT:

Southport

HEARING DATE:

22 April 2024

JUDGE:

Jackson KC, DCJ

ORDER:

Order that indictment 455/2023 be permanently stayed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – DELAY – where a stay of proceedings is sought for failure over eight years to adequately particularise the case – whether the current particulars are deficient – whether the circumstances of the case warrant an order that the proceedings be stayed.

LEGISLATION:

Criminal Code ss 568(3) and 590AA

CASES:

Mackay v R (1977) 136 CLR 465

R v Baynes [1989] 2 Qd R 431

Kirk v Industrial Court (NSW) (2010) 239 CLR 531

Johnson v Miller (1937) 59 CLR 467

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

GLJ v Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 97 ALJR 857
COUNSEL:

J Underwood for the applicant Seymour
S Holt KC and B Reilly for the applicants Doumani and Pappas

M Hynes for the respondent
SOLICITORS:

Grant Lawyers for the applicant Seymour
Jacobson Mahony Lawyers for the applicants Doumani and Pappas
Director of Public Prosecutions (Qld) for the respondent

Introduction

  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]

    [1]The history appears in the chronology which is Annexure A to the affidavit of Darren Thomas Mahony.

  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. The applicants apply pursuant to s 590AA of the Criminal Code Act 1899 (Qld) (“Criminal Code”) for an order that the indictment…

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CaseChat Overview and Summary

In the matter of R v Seymour, the applicants sought a permanent stay of the proceedings due to the Crown's failure to adequately particularise the case over the past eight years. The applicants argued that despite the Crown's provision of new particulars, they remained seriously deficient and that the circumstances warranted a stay of the proceedings. The Crown opposed the application, asserting that it had provided sufficient particulars and that the applicants had not demonstrated any prejudice resulting from the delays.

The legal issues before the court involved determining whether the particulars were deficient and whether the circumstances of the case warranted a stay of the proceedings. The applicants argued that the Crown's failure to adequately particularise the case, combined with the length of the proceedings and the oppressive nature of the situation, justified a stay. The Crown, on the other hand, maintained that it had provided sufficient particulars and that the applicants had not suffered any prejudice from the delays.

The court found that the particulars provided by the Crown were indeed deficient and that the applicants had been significantly prejudiced by the prolonged proceedings. The court noted that the applicants had been subject to legal proceedings for over eight years, with the requirement to fund those proceedings and significant constraints on their freedom due to bail conditions. Additionally, the committal proceedings had extended over 12 months because the prosecution had repeatedly failed to provide adequate particulars. The court concluded that the circumstances warranted a permanent stay of the proceedings.

In light of the above, the court ordered that the indictment be permanently stayed.

Orders

Orders of the court

Order that indictment 455/2023 be permanently stayed.

Background

Background to the litigation

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 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 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:(a)The relevant act being a representation by one or more of the applicants;(b)The resulting investment; and(c)The circumstances in which the act was dishonest to their knowledge.Parties’ submissionsSubmissions of the applicants The applicants submit that:(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][2]Paragraph 3 of the applicants’ written submissions.(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]Moevao v Department of Labour [1980] 1 NZLR 464 at 481 per Richardson J approved in Jago v District Court (NSW) (1989) 168 CLR 23 at 30 per Mason CJ.(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][5]Those matters are addressed in paragraphs 6-22 of the applicants’ written submissions.(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][6]Paragraph 16 of the applicants’ written submissions.(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] [7]Paragraph 23 of the applicants’ written submissions.(f)It is oppressive to continue to prosecute the applicants in circumstances where:(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][8]Paragraph 40 of the applicants’ written submissions.(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][9]Paragraph 41 of the applicants’ written submissions.(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][10]Paragraph 42 of the applicants’ written submissions.(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][11]Paragraph 43 of the applicants’ submissions.(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:(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;(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;(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](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.(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;(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.[12]See Mackay v R (1977) 136 CLR 465 and R v Baynes [1989] 2 Qd R 431 at 434 as referred to in paragraphs 46 and 47 of the applicants’ written submissions.[13]Further submissions are included as to this issue in paras 49 and 50 of the applicants’ written submissions.[14]Paragraph 51 to 57 of the applicants’ written submissions.Submissions on behalf of the respondent

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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