Director of Public Prosecutions v Pyliotis (costs ruling)

[2021] VSC 306

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 2017 0085

DIRECTOR OF PUBLIC PROSECUTIONS

v

KATIA SOUMAYA PYLIOTIS

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JUDGE:	HOLLINGWORTH J
WHERE HELD:	Melbourne
DATE OF HEARING:	26 May 2021
DATE OF JUDGMENT:	26 May 2021
CASE MAY BE CITED AS:	DPP v Pyliotis (costs ruling)
MEDIUM NEUTRAL CITATION:	[2021] VSC 306

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PRACTICE AND PROCEDURE – Costs – Criminal law – Application for permanent stay of proceedings – Proceedings discontinued part way through application – Whether statutory or inherent power to order costs – No power to order costs – Application dismissed.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms A Ellis Ms B Goding	Ms A Hogan, Solicitor for Public Prosecutions
For Ms Pyliotis	Mr D Dann QC Ms M O’Brien	Stary Norton Halphen

HER HONOUR:

1. This is an application by Katia Pyliotis for an order that the costs of her application for a permanent stay of this proceeding be paid by the Office of Public Prosecutions.  The application was made in the following circumstances.

1. On 17 December 2019, Ms Pyliotis was found guilty of murder, following a trial in this court.  That was the fourth time she had faced trial on that particular charge.  At each of the three earlier trials, the jury had been discharged without verdict.

1. On 14 May 2020, the Court of Appeal allowed an appeal against conviction, and ordered a retrial. The Court of Appeal also ordered that a certificate be granted pursuant to s 14 of the Appeal Costs Act 1998 in respect of the costs of the retrial (‘the indemnity certificate’). 

1. In June 2020, the prosecution provided further disclosure in the form of the diary notes of Detective Ryan, an important prosecution witness at the previous trials.  Those notes raised serious questions as to the credibility of the evidence he had given on previous occasions concerning admissions, and their alleged recantation, by another suspect for the murder. 

1. The following month, in July 2020, the prosecution provided the opening for the retrial. 

1. Ms Pyliotis then applied for a permanent stay of the prosecution, on the ground that their continuation would be an abuse of process. 

1. The stay application proceeded on 12 and 13 October, and 17 and 18 November 2020.  Over those days, evidence was led from Detective Ryan, and various other police officers who had been involved in the original investigation of the deceased's death.

1. On the last of those days, the prosecution indicated that they would no longer seek to lead evidence from Detective Ryan as to the alleged recantation of admissions by the alternative suspect.  I observed that if the recantation evidence was not led, the stay application would look very different.  By that, I meant that the stay application had been considerably weakened by the prosecution's change of approach. 

1. The stay application was adjourned off part-heard, in order to enable the parties to hold discussions about the continuation of the proceeding.  In the event that the matter could not be resolved, then the parties would be required to deliver final submissions on the stay application.  Although some written submissions had been filed in advance of the hearing, they clearly required substantial revision to reflect the evidence that had been led in the course of the hearings in October and November. 

1. On 4 December 2020, Ms Pyliotis applied to the DPP for a notice of discontinuance.

1. On 8 February 2021, a notice of discontinuance was filed in open court.  On that day, Ms Pyliotis' counsel foreshadowed that an application for costs may be made in respect of the stay application, depending on the outcome of enquiries with the Appeal Costs Board concerning the indemnity certificate granted by the Court of Appeal. 

1. The indemnity certificate covered any additional costs associated with the retrial.  Those costs would ordinarily include all of the costs of preliminary steps prior to trial, such as interlocutory applications. 

1. Unfortunately, the Secretary to the Board informed Ms Pyliotis' lawyers that the Board would not even consider an application for the costs of the stay application to be paid under the indemnity certificate, unless and until a costs application by Ms Pyliotis had been made and determined by the court.  I say 'unfortunately', because that advice has led to unnecessary delay, expense and inconvenience, in circumstances where there was never any realistic basis for thinking that the OPP might be ordered to pay costs. 

1. I turn to consider the threshold question of whether the court would have power to order costs in this particular case.  Two potential sources of power have been identified. 

1. The first source of power lies in s 24(1) of the Supreme Court Act 1986. The court’s general power to order costs under s 24(1) has been held in a number of cases to be a broad one. However, s 24(1) is subject to s 24(2), and to any other express statutory provision.

1. Section 24(2) provides that nothing in s 24 alters the practice in any criminal proceeding.  The general practice in criminal proceedings is that costs are not ordered for or against the Crown.  That practice is not absolute, but this case does not fall into any recognised category of exception, such as those discussed in the case of Director of Public Prosecutions (Commonwealth) v Brady & Ors [2019] VSC 397 (‘Brady’). 

1. In Brady, the court was dealing with a case in which a successful application for a permanent stay on the grounds of abuse of process had been made.  That may be contrasted with this case, where there has been no court determination of the stay application.  This prosecution was discontinued while the stay application was part-heard.

1. Furthermore, there is an express statutory power covering the award of costs of the stay application in this case. That is the power to be found in s 14 of the Appeal Costs Act, the provision under which the indemnity certificate was granted. 

1. Alternatively, even if s 14 of the Appeal Costs Act did not expressly apply to the current application for costs, there is undoubtedly an existing practice that the costs associated with any retrial order by the Court of Appeal be covered by a s 14 certificate, not by the OPP.

1. It follows that there is no statutory basis for making an award as to costs. 

1. The second possible source of power to order costs lies in the Supreme Court's inherent jurisdiction to make an award of costs.  The source of that power is the court’s inherent jurisdiction to control abuses of its process.  However, unlike the situation in Brady, in this case there has been no judicial finding of an abuse of process. 

1. The DPP decided to file a notice of discontinuance after discussions between the parties.  The court was not privy to those discussions, and has no knowledge of the particular reasons why the DPP determined not to proceed with what would have been Ms Pyliotis' fifth trial.  There may have been a number of different factors that were considered in coming to that decision, including, but not limited to, a consideration of the evidence led during the stay application.  I am in no position to make a finding that the Director only discontinued because she “saw the writing on the wall” with respect to the way the stay application was proceeding, as the applicant suggests.  In the circumstances, it is not appropriate for the court to speculate on the reasons for the decision to discontinue. 

1. It is also not appropriate for the court to speculate on what the outcome of the stay application might have been, had the proceeding not been discontinued.  That is a purely hypothetical situation. 

1. It follows that there is no inherent jurisdiction to make an award of costs in the current circumstances.

1. For those reasons, I am satisfied that there is no power, statutory or inherent, for the court to make an order for costs of the stay application.  The costs application will be dismissed.