Kostiuk v KH (a pseudonym) (No 2)
[2024] VSC 636
•18 October 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2023 04448
| FELIX KOSTIUK (a police officer) | Plaintiff |
| v | |
| KH (a pseudonym) | First Defendant |
| and | |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 September 2024 |
DATE OF JUDGMENT: | 18 October 2024 |
CASE MAY BE CITED AS: | Kostiuk v KH (a pseudonym) (No 2) |
MEDIUM NEUTRAL CITATION: | [2024] VSC 636 |
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JUDICIAL REVIEW – Sex Offenders Register – Application for a SORA order struck out in the Magistrates’ Court – Magistrates’ Court order set aside and rehearing ordered – Appropriate costs order – Application for a certificate under the Appeal Costs Act 1998 – Whether SORA application a criminal proceeding – Application for indemnity certificate dismissed – Appeal Costs Act 1998 s 4 – Sex Offenders Registration Act 2004 ss 3, 6, 11 – Criminal Procedure Act 2009 s 3 – Civil Procedure Act 2010 ss 3, 4.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms E Millar | Victoria Police |
| For the First Defendant | Dr E Kelly | Stary Norton Halphen |
HIS HONOUR:
On 23 September 2024, I delivered judgment in this proceeding deciding that the plaintiff (‘the informant’) had established various grounds of his amended originating motion. I set aside the Magistrates’ Court orders and ordered that the application be remitted to be reheard by another Magistrate.[1] In his application (‘the SORA application’), the informant had applied for an order that the first defendant, KH, comply with the reporting obligations under s 11 of the Sex Offenders Registration Act 2004 (‘the SORA’). KH had been found guilty of fourteen counts of entering a private place without lawful excuse in breach of s 9(1)(e) of the Summary Offences Act 1966 and one count of breaching a prescribed condition of parole in breach of s 78A of the Corrections Act 1986.
[1]Kostiuk v KH (a pseudonym) [2024] VSC 586.
I have now heard argument about costs and about KH’s application for a certificate under s 4 of the Appeal Costs Act 1998. I will first deal with the question of costs.
At the costs hearing, the informant submitted that the SORA application was a criminal proceeding whereas KH submitted it was a civil proceeding.
The informant submitted that KH did not need to participate in this proceeding and had added to the costs by doing so. Costs would not have built up, if KH had instead agreed to orders that the Magistrate had erred and that the matter be remitted. The informant’s position was that costs should follow the event and that KH should pay his costs.
KH advanced two submissions. His primary submission was that this application is a civil proceeding and that an indemnity certificate should be granted to him. I will consider that submission later. KH submitted that, if the proceeding was classified as civil, but a certificate nevertheless could not be granted, there should be no order as to costs. He described his position as ‘faultless’ and contended that he had to be represented at the hearing. He also submitted that if the application was classified as a criminal proceeding, in accordance with the ordinary practice, there should be no order as to costs.
Costs decision
I consider that KH had a legitimate interest in participating in this proceeding in order to maintain the outcome that he was not subject to a SORA order. I also consider that the submissions of KH’s counsel, as well as the submissions of the informant’s counsel, were of assistance to the Court. In judicial review proceedings, the Court does not make orders merely because one party does not oppose them, it must be satisfied that the orders sought are an appropriate exercise of the Court’s jurisdiction and it usually requires counsels’ assistance in reaching that decision.
I consider that there should be no order as to costs, whether the SORA application is to be regarded as a civil or a criminal proceeding. Although the informant succeeded on a number of grounds and had the Magistrates’ Court orders set aside and the application remitted for rehearing, other aspects of the outcome of this proceeding make the appropriate costs outcome that there be no order as to costs
The informant challenged two decisions of the Magistrates’ Court. First, was the Magistrate’s refusal to grant his application for an adjournment of the SORA application so that further material to support it could be gathered. I rejected that challenge and decided that the informant had not established that the Magistrate erred in refusing the adjournment. So, KH succeeded on the informant’s challenge to the Magistrate’s refusal to grant an adjournment. The second decision, which the informant did successfully challenge, was the Magistrate’s order striking out the SORA application rather than allowing the prosecutor to present it on that day, 27 July 2023. However, neither party had sought a strike out order, rather that was the order that the Magistrate considered appropriate. Accordingly, the informant cannot rely on the successful challenge to the strike out order in seeking an order for costs against KH, because KH had not sought such an order, or anything like it.
KH’s indemnity certificate application
I next consider KH’s application for an indemnity certificate. The Court can only grant him such a certificate if the SORA application was a civil proceeding, as s 4(1) of the Appeal Costs Act only applies to civil proceedings. If the application was a criminal or quasi-criminal proceeding, no indemnity certificate can be granted. Section 4 provides that:
Application by respondent for indemnity certificate in respect of appeal
(1) If an appeal against a decision of a court in a civil proceeding—
(a) to the Trial Division of the Supreme Court; or
(b) to the Court of Appeal, including an appeal to the Court of Appeal from a decision of the Trial Division of the Supreme Court; or
(c) to the High Court of Australia from a decision of the Supreme Court—
succeeds, a respondent to that appeal may apply to the Supreme Court for, and the court may grant, an indemnity certificate in respect of costs.
I therefore next consider whether the SORA application was a civil proceeding within the meaning of s 4(1) of the Appeal Costs Act. The parties referred to statutory provisions which they considered were of assistance in understanding the meaning of the term ‘civil proceeding’ in s 4(1).
First, was the definition of ‘civil proceeding’ in s 3 of the Civil Procedure Act2010:
…any proceeding in a court other than a criminal proceeding or quasi-criminal proceeding
‘Criminal proceeding’ is defined in the same section:
“criminal proceeding” means a proceeding to which the Criminal Procedure Act 2009 applies and includes—
(a) committal proceedings;
(b) proceedings relating to bail;
(c) proceedings relating to the sentencing of an accused.
Section 4(1) of the Civil Procedure Act 2010 provides that the Act applies to all civil proceedings. Section 4(2) provides that the Act does not apply to proceedings under specified Acts including: the Sentencing Act 1991, the Family Violence Protection Act 2008, the Personal Safety Intervention Orders Act 2010 and the Confiscation Act 1997.
Secondly, s 3 of the Criminal Procedure Act 2009 defines ‘sentence’ as including:
(a) the recording of a conviction; and
(b) an order made under Part 3, 3A, 3B, 3BA, 3C, 3D, 4 or 5 of the Sentencing Act 1991, other than an order incidental to or preparatory to the making of the order; and
(c) an order made under section 11 or 11B of the Sex Offenders Registration Act 2004.
Thirdly, the following provisions of the Sexual Offenders Registration Act 2004 provide:
3 Definitions
(1) In this Act—
…
“sentence” includes—
(a) a sentence within the meaning of the Criminal Procedure Act 2009 or the Children, Youth and Families Act 2005, including an order for the adjournment of a proceeding under section 59 of the Criminal Procedure Act 2009
…
6 Who is a registrable offender?
(1) Subject to subsections (4) to (6), a registrable offender is a person whom a court has at any time (whether before, on or after 1 October 2004) sentenced for a registrable offence.
…
11 Sex offender registration order
(1) If a court finds a person guilty of an offence committed as an adult that is not a Class 1 or Class 2 offence (including an offence that is a Class 3 or Class 4 offence), it may order that the person comply with the reporting obligations of this Act.
…
(3) The court may only make an order under this section if, after taking into account any matter that it considers appropriate, it is satisfied, beyond reasonable doubt, that the person poses a risk to the sexual safety of one or more persons or of the community.
Informant’s submissions about KH’s indemnity certificate application
The informant submitted that the SORA application was a criminal proceeding because of the definition of that term in the Civil Procedure Act and, therefore, a certificate could not be granted under s 4(1) of the Appeal Costs Act.
The informant submitted that the SORA application fell within the definition of a criminal proceeding in the Civil Procedure Act because that definition includes proceedings relating to the sentencing of an accused. A SORA application can be so classified because orders made under s 11 of the SORA are specifically included in the definition of a sentence within s 3 of the Criminal Procedure Act. The informant submitted that the fact that a SORA order was not provided for in the Sentencing Act1991 was not relevant. Similarly, the fact that a SORA order is not punitive is irrelevant in deciding whether a SORA application is a criminal proceeding.
The informant relied on the fact that if, upon remittal, the Magistrates’ Court makes a SORA order, KH would have appeal rights under the Criminal Procedure Act. The appeal would therefore be a criminal appeal, which pointed to the SORA application being a criminal proceeding.
The informant also made written submissions including that if the Court makes no order for costs, this effectively means the parties are to bear their own costs. An indemnity costs certificate which allowed only one of the parties to recover their costs would appear to contradict a court order that there be no order for costs. Without an order for costs in favour of the informant, KH bore no liability for his costs. Section 5 of the Appeal Costs Act allows a respondent to a successful appeal to apply for the payment of the appellant’s and the respondent’s costs. However, in circumstances where KH was not required to actively participate in this proceeding, it would only be fair, if the Court granted a costs indemnity certificate to KH, that the certificate also cover the informant’s costs, which were incurred to ensure the proper administration of justice.
KH’s submissions about the indemnity certificate application
Counsel for KH placed importance on the fact that a SORA application was not included in the definition of ‘sentence’ in the Sentencing Act. Nor was it a criminal proceeding for the purposes of the Civil Procedure Act. A SORA order is a protective order and not imposed as punishment. Kaye J stated in WBM v Chief Commissioner of Police[2] that the primary purposes of the SORA were:[3]
…to prevent re-offending by convicted sex offenders, and to facilitate the investigation and prosecution of future offences which might be committed by those persons. Neither of those purposes, in any way, are penal, nor do they have anything in common with the fundamental purposes served by a sentence for a criminal offence under Victorian law.
[2](2010) 27 VR 469, [43], [65]-[68].
[3]Ibid [65].
The Court of Appeal dismissed an appeal from Kaye J’s judgment.[4]
[4]WBM v Chief Commissioner of Police (2012) 43 VR 446.
KH submitted that the inclusion of a s 11 SORA order within the definition of ‘sentence’ in the Criminal Procedure Act did not mean that a SORA application was a ‘criminal proceeding’. The reference in s 3(c) of the Civil Procedure Act to ‘proceedings relating to the sentencing of an accused’ should be read by reference to the sentencing provisions in the Sentencing Act 1991, which do not include a SORA order.
KH referred to other cases where the underlying proceeding was criminal in nature.[5] They were said to be distinguishable because the applications with which they were concerned ‘flowed into’ criminal proceedings. However, the SORA order took effect after the completion of a criminal proceeding. Section 6(1) of the SORA requires a sentence to be imposed before a SORA order can be made. The SORA therefore does not contemplate that the making of an order under s 11 constitutes ‘sentencing’ and therefore is not a ‘criminal proceeding’ within the Civil Procedure Act.
[5]Kirsch v Dolman [2001] VSC 234, Siddique v Martin (No 2) [2016] VSCA 310 and Celsius Fire Services Pty Ltd v Magistrates’ Court of Victoria (No 2) [2020] VSC 120.
KH submitted that it could not be that the Civil Procedure Act’s definition of criminal proceeding and reference to ‘sentencing’ somehow ‘picked up’ the definition of sentence in the Criminal Procedure Act, which relates to appeal rights and therefore usurped the role of the Sentencing Act which governs sentencing.
KH submitted that a SORA application was also not a ‘quasi-criminal’ proceeding because that term refers to conduct which is analogous to criminal conduct, or which may attract sanctions analogous to criminal sanctions e.g. civil contempt proceedings, customs prosecutions and penalty proceedings.[6]
[6]See Western Truck Towing v The Magistrates’ Court of Victoria [2014] VSC 88, [32].
KH submitted that appeal rights from SORA orders were included within the definition of ‘sentence’ in the Criminal Procedure Act because of the requirements for imposing a SORA order. If a person convicted of an offence, who is then the subject of a SORA order, wishes to challenge the conviction or the sentence imposed, then a SORA order must necessarily ‘be thrown into the appeal mix’[7] i.e. form part of the matters dealt with in the appeal proceeding. Thus, if the appeal court sets aside the conviction, it must also have power to set aside the SORA order that has been imposed following that conviction. But a SORA order only becomes part of a criminal proceeding if, and when, the person subject to the SORA order exercises the appeal rights under the Criminal Procedure Act.
[7]Transcript of Proceedings, Kostiuk v KH (a pseudonym) (Supreme Court of Victoria, S ECI 2023 04448), Ginnane J, 30 September 2024, (T) 21.
Analysis of KH’s indemnity certificate application
I consider that the SORA application was a criminal proceeding and therefore not a civil proceeding within the meaning of that term in s 4(1) of the Appeal Costs Act. That is because I consider that a SORA order is an order made in proceedings ‘relating to’ the sentencing of a person within the definition of ‘criminal proceeding’ in s 3(c) of the Civil Procedure Act. I proceed on the basis adopted by the informant and KH that the definitions of the terms ‘civil proceeding’ and ‘criminal proceeding’ in the Civil Procedure Act are a persuasive guide to the meaning of the relevant terms in the Appeal Costs Act. The words ‘relating to’ in s 3(c) in the Civil Procedure Act are wide. Reference to two authorities demonstrates that. In Tooheys Ltd v Commissioner of Stamp Duties (NSW),[8] Taylor J stated:
There can be no doubt that the expression ‘relating to’ is extremely wide but it is also vague and indefinite. Clearly enough it predicates the existence of some kind of relationship but it leaves unspecified the plane upon which the relationship is to be sought and identified. That being so all that a court can do is to endeavour to seek some precision in the context in which the expression is used.[9]
[8](1961) 105 CLR 602.
[9]Ibid at 620.
In State of Victoria v Thompson,[10] the Court of Appeal stated:
The words ‘relates to’ are words of wide and general import. As has been said before, the precise ambit of the expression can only be discerned from the context in which it has been used.[11]
[10](2019) 58 VR 583 (Beach and Osborn JJA and Kennedy AJA).
[11]Ibid at [37] (citations omitted), see also Australian Securities and Investments Commission v Narain (2008) 169 FCR 211 [68]-[71] (Jacobson and Gordon JJ).
I proceed on the basis that a SORA order is not penal in nature. However, I have reached the conclusion that a SORA application is not a civil proceeding, but is a criminal proceeding because of the combination of the following considerations. First, a SORA order can only be made after a person is found guilty and sentenced. Secondly, the court can only make a SORA order under s 11(3) of the SORA if, after taking into account any matter that it considers appropriate, it is satisfied according to the criminal standard of proof of beyond reasonable doubt, that the person poses a risk to the sexual safety of one or persons or of the community. Thirdly, the appeal provisions from the making of a SORA order are contained in the Criminal Procedure Act. That Act treats a SORA order as a criminal sentence for the purposes of appeal rights. For the combination of those matters, it is appropriate to treat the underlying SORA application as being a proceeding relating to the sentencing of an accused person within the meaning of s 3(c) of the Civil Procedure Act. A direct relationship exists between the criminal conviction and the sentence and the appeal rights from them and from any SORA order, all of which appeal rights are regulated by the criminal procedure in the Criminal Procedure Act. I do not consider that an analysis which characterises the SORA application as a civil proceeding up to the making of a SORA order and, thereafter, if an appeal against the underlying conviction or sentence or SORA order is commenced, characterises the SORA order as a criminal proceeding to which the appeal rights under Criminal Procedure Act apply, is a satisfactory analysis of the legislation. The fact that a SORA order is not itself a criminal penalty or sentence, but is for the protection of the public, does not mean that it cannot be characterised as being made in a proceeding relating to the sentencing of an accused person, when the statutory regime dealing with the making of SORA orders and appeals therefrom is considered.
Had I found that a SORA application was a civil proceeding, it would have been necessary to determine whether an indemnity certificate could be granted although the Court has ordered that there be no order as to costs. Although it is unnecessary to decide that matter, my opinion is that an indemnity certificate could be granted to the respondent in such circumstances. Section 5(1)(a) of the Appeal Costs Act entitles the respondent to an amount equal to the appellant’s costs, if any, that the respondent has been ordered to pay and has actually paid and s 5(1)(b) entitles the respondent to an amount in respect of the respondent’s own costs, if any.[12] The fact that in a particular case, s 5(1)(a) is not applicable because the respondent has not been ordered to pay the appellant’s costs does not mean that s 5(1)(b) cannot apply, and entitle the respondent, who has been granted an indemnity certificate, to an amount in respect of his own costs. Section 5 (1)(b) applies to costs of the respondent that have not been ordered to be paid by any other party. The legislation is not intended to provide a successful appellant with an indemnity certificate, whether or not the Court makes an order for costs. However, the Court may exercise its discretion to refuse to grant an indemnity certificate in circumstances where it considers it would be unfair to grant a certificate.
[12]The amounts payable are subject to a statutory cap. See s 5(2) of the Appeal Costs Act1998.
Conclusion
I will order:
(a) There be no order as to the costs of the proceeding.
(b) The first defendant’s application for an indemnity certificate under s 4(1) of the Appeal Costs Act 1998 is dismissed.
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