Kyriazis v Detective Senior Sergeant Peter Leo Kos - [2022] VSC 569

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2019 03377

VASILIOS KYRIAZIS	Plaintiff
v
DETECTIVE SENIOR SERGEANT PETER LEO KOS	First Defendant
-and-
MAGISTRATES’ COURT VICTORIA	Second Defendant
-and-
DIRECTOR OF PUBLIC PROSECUTIONS	Third Defendant

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JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATES OF HEARING:	11 August 2022, 13 September 2022
DATE OF JUDGMENT:	28 September 2022
CASE MAY BE CITED AS:	Kyriazis v Detective Senior Sergeant Peter Leo Kos
MEDIUM NEUTRAL CITATION:	[2022] VSC 569

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PRACTICE AND PROCEDURE – Appeal from a decision of a judicial registrar granting summary judgment – Appeal conducted by way of hearing de novo – Private prosecution taken over by Director of Public Prosecution - Whether a decision of Director of Public Prosecutor not to prosecute is open to judicial review – Section 456AA Crimes Act - Prospects of success – Where it is in the interests of justice for the proceeding to be disposed of summarily – Supreme Court (General Civil Procedure) Rules 2015, r 84.05 – Civil Procedure Act 2010 (Vic), ss 61-64.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Appeared in person
For the Defendants	L McAuliffe	Solicitors for the Office of Public Prosecutions

HER HONOUR:

Preliminary

This is an appeal of a summary judgment given by Caporale JR on 24 February 2020 against the plaintiff, Mr Kyriazis, in respect of his application for judicial review of a decision of the Director of Public Prosecutions (‘DPP’) to take over and discontinue a private prosecution that he had commenced in the Magistrates’ Court of Victoria against the first defendant, Detective Senior Sergeant Peter Kos (‘DSS Kos’).

In his amended originating motion for judicial review dated 11 September 2019, Mr Kyriazis claimed that the DPP had erred in her interpretation of the legislation and regulations relevant to the prosecution of DSS Kos. Mr Kyriazis contended that this constituted a judicial error in respect of her decision to withdraw the prosecution. However, the Judicial Registrar was satisfied that the application for judicial review had no real prospect of success, entered summary judgment for the defendants, and ordered that Mr Kyriazis pay the costs of those proceedings.

Mr Kyriazis now seeks to appeal the decision of the Judicial Registrar pursuant to r 84.05 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). Under the Rules, this appeal was conducted as a hearing de novo. In determining Mr Kyriazis’ appeal, I am not bound by the evidence which was before the Judicial Registrar, although I note that neither party tendered any additional affidavit material.[1]
[1]At the commencement of the hearing, Mr Kyriazis initially sought to tender two documents/statements. However, as these concerned other proceedings issued by him in the County Court of Victoria, they were irrelevant to this appeal. Mr Kyriazis did not persist with his proposed tender.

Neither DSS Kos nor the Magistrates’ Court participated in this appeal.

For the reasons that follow, as I am satisfied that Mr…

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: [2022] VSC 569
Decision Date: 28 September 2022

CaseChat Overview and Summary

In the case of Kyriazis v Detective Senior Sergeant Peter Leo Kos, the plaintiff sought to appeal against a decision of a judicial registrar granting summary judgment in favour of the defendant, Detective Senior Sergeant Peter Leo Kos. The plaintiff alleged that the defendant used his position as a police officer to obtain private information and use it for his personal benefit, constituting misuse of public office. The matter was heard in the Supreme Court of Victoria. The defendant, a former police officer, was accused of misusing his position to gain private information and using it for personal benefit. The plaintiff's private prosecution was taken over by the Director of Public Prosecutions (DPP), who subsequently decided not to prosecute. The plaintiff appealed the decision of the judicial registrar, arguing that the decision of the DPP not to prosecute was open to judicial review and that there were prospects of success in the proceeding. The court had to determine whether the decision of the DPP not to prosecute was open to judicial review, and if the proceeding had prospects of success and was in the interests of justice for the proceeding to be disposed of summarily.

The court found that the decision of the DPP not to prosecute was not open to judicial review as it was a discretionary decision that could not be reviewed on the basis of whether it was a correct or preferable decision. The court also found that there were no prospects of success in the proceeding as the plaintiff had failed to establish a cause of action against the defendant. The court held that the plaintiff's allegations were not sufficient to establish that the defendant had misused his position as a police officer to obtain private information and use it for his personal benefit. The court further held that even if the plaintiff's allegations were true, they did not constitute a misuse of public office. The court concluded that it was not in the interests of justice for the proceeding to be disposed of summarily.

The appeal was dismissed, and the decision of the judicial registrar granting summary judgment in favour of the defendant was upheld. The court found that the plaintiff had failed to establish a cause of action against the defendant and that there were no prospects of success in the proceeding. The court held that the decision of the DPP not to prosecute was not open to judicial review, and that it was not in the interests of justice for the proceeding to be disposed of summarily. The defendant was awarded costs of the appeal.

Orders