Kyriazis v Detective Senior Sergeant Peter Leo Kos
[2022] VSC 569
•28 September 2022
| 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 Kyriazis’ claim for judicial review has no real prospect of success, I consider that it is in the interests of justice to order summary judgment for the defendants in this matter.
Background
On 1 May 2019, Mr Kyriazis filed a criminal charge and summons in the Magistrates’ Court of Victoria alleging that on 10 July 2018, DSS Kos committed an offence contrary to s 456AA(5)(a) of the Crimes Act 1958 (Vic) (‘the Crimes Act’) at the Melbourne Magistrates’ Court (‘the charge’). The charge sheet detailing the particulars of the offence states that DSS Kos ‘refuse[d] to state his name and details’.
Section 465AA of the Act provides as follows:
Requirement to give name and address
(1)A police officer or a protective services officer on duty at a designated place may request a person to state his or her name and address if the police officer or the protective services officer believes on reasonable grounds that the person—
(a)has committed or is about to commit an offence, whether indictable or summary; or
(b)may be able to assist in the investigation of an indictable offence which has been committed or is suspected of having been committed.
(2)A police officer or a protective services officer who makes a request under subsection (1) must inform the person of the grounds for his or her belief in sufficient detail to allow the person to understand the nature of the offence or suspected offence.
(3)A person who, in response to a request made by a police officer or a protective services officer in accordance with this section—
(a) refuses or fails to comply with the request; or
(b) states a name that is false in a material particular; or
(c)states an address other than the full and correct address of his or her ordinary place of residence or business— is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum).
(4)A person who is requested by a police officer or a protective services officer under subsection (1) to state his or her name and address may request the officer to state, orally or in writing, his or her name, rank and place of duty.
(5)A police officer or a protective services officer who, in response to a request under subsection (4)—
(a) refuses or fails to comply with the request; or
(b) states a name or rank that is false in a material particular; or
(c)states as his or her place of duty an address other than the name of the police station which is the police officer's or the protective services officer’s ordinary place of duty; or
(d)refuses to comply with the request in writing if requested to do so— is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum).
(6)A protective services officer may only exercise the power under this section in relation to a person who is at, or in the vicinity of, a designated place.
(7)In this section—designated place has the same meaning as in the Victoria Police Act 2013.
Under s 3 of the VictoriaPolice Act 2013, ‘designated place’ is defined to mean a place prescribed by the Victoria Police Regulations 2014 (‘the Regulations’). Under the Regulations, ‘designated place’ includes railway premises, Council controlled car parks, and bus premises.[2]
[2]Victoria Police Regulations 2014 (Vic), reg 27 (‘the Regulations’).
Section 22(1)(b)(ii) of the Public Prosecutions Act 1994 (Vic) (‘the Public Prosecutions Act’) provides the DPP with the power to take over and conduct any proceedings in respect of any summary or indictable offence.
On 7 May 2019, the Office of Public Prosecutions (‘OPP’) wrote to Mr Kyriazis and informed him that the DPP was considering whether to take over the prosecution of the charge, and requested a copy of the charge sheet, the affidavit of service, any exhibits, and a brief of evidence or any documentation that he had prepared to support the charge against DSS Kos.
On 14 May 2019, the OPP again wrote to Mr Kyriazis requesting that he provide any material he relied on and advised him that failure to provide such material may result in the DPP concluding that he did not have evidence to support the charge.
On 17 May 2019, Mr Kyriazis affirmed an affidavit to which he exhibited a handwritten statement detailing the circumstances he said gave rise to the commencement of the private prosecution. The statement was as follows:
Re: Incident at Melbourne Magistrates (sic) Court 10 July 2018
On this day I attended MELB MAG Court with XXX at XXX’ request.
After Mr XXX had dealt with his case I made my way to the ground floor.
I waited at the foyer at the bottom of the stair case.
Whilst I was waiting a person (male) dressed in a bluey/grey suit accosted me and began uttering obscenities and describing me in a most demeaning and derogatory fashion in statement in full view and earshot of the public.
I then demanded he state his name and full identity to me, and I asked him for his identity multiple times and he blatantly refused to state it.
He then made me an offer in order to have me engage him into conflict by inviting me to the bus stop where he would give me his name.
This person whom I now know to be Mr Peter Leo Kos is not only a policeman but has also worked with the rofessional (sic) Standards Command, and he knows of me through that office as I have had multiple issues with their complaints over many years.
Yet I do not know this Peter Leo Kos nor have I ever encountered him anywhere….
Sometime after the incident I was given a copy of a statement made by Mr Peter Leo Kos.
This statement belonged to XXX who had received it from Mr Peter Leo Kos.
This statement consisted of a page making references/inferences about me and XXX? That were false. In fact it was a response to my written complaint regarding Mr Kos’ behaviour yet it was included in Mr Browns documents.
This statement also consisted of a paragraph where Mr Peter Leo Kos has made a clear admission of guilt/offence, attached EXHIBIT “A”.
Also exhibited to the affidavit was a document marked as ‘EXHIBIT”A”’. This one-page document appeared to be a statement made by DSS Kos and was marked as ‘Page 4 of 6’. Neither the date of the document nor whether it was signed by DSS Kos is apparent. I also note that some names in the document were redacted.[3]
[3]While the DPP did not oppose the statement as evidence before me, for the purpose of this appeal, in circumstances where this was not the complete statement and was unsigned and undated, the DPP indicated to me that she was not presently in a position to accept its authenticity.
Relevant to this application, the statement reads as follows:
Some time XXXX was bailed, I was on the ground floor of the court preparing to leave. XXXX and his 2 mates were waiting at the counter to request a recording of the proceedings from the court. KYRIAZIS spotted me and came over and demanded my name – repeatedly in my face – which of course I refused and asked him on what authority he was asking me. It seemed the hypocrisy was lost on him and he continued to demand my name. We had a verbal exchange as he became personal etc and followed me out to court saying he would follow me until I provided him with my name. He continued to aggressively and repeatedly ask me for my name. I told him he already knew my name and that he was welcome to get on the bus with me back to Doncaster. He eventually walked away and joined XXXX and XXXX.
Subsequent to receiving this material, the DPP exercised her power under s 22(1)(b)(ii) of the Public Prosecutions Act to take over the prosecution of the charge against DSS Kos and thereafter decided to withdraw the charge (‘the DPP’s decision’). On 24 May 2019, the OPP wrote to Mr Kyriazis to advise him of this decision.
On 29 May 2019, the criminal charge was formally withdrawn by the DPP in the Melbourne Magistrates’ Court, and orders were made to this effect. Mr Kyriazis was present in court when this occurred, together with four other people known to him. Mr Kyriazis subsequently filed his own affidavit, together with affidavits of those four people in respect of what they saw and observed. In his affidavit sworn 29 July 2019, Mr Kyriazis said that:
…
7. On 29th May 2019 I attended the mention hearing for this matter before Magistrate Pillai.
Counsel for the DPP, Mr Plummer informed the Magistrate that they sought to withdraw my matter. I sought reasons from Mr Plummer as to why my prosecution was being withdrawn, so the Magistrate stood the matter down in order for him to provide me with the DPP’s reasons.8. A discussion between myself and Mr Plummer took place in the foyer area outside the courtroom. A number of people were witnesses to this conversation including Mr Nigel Waddington, Mr George Koromilas, Mr Daniel Boros, Mr Rohan Brown, Mr Russell Park-Miller, and Mr Pat Yii. I was told that my prosecution was being withdrawn because it supposedly had no chance of success due to a court not being a “designated place” under the Victoria Police regulations. The Victoria Police Act was also mentioned. I didn’t understand what any of this actually meant or how it was relevant to my prosecution and asked Mr Plummer to explain further, however he declined to do so stating that he was not in a position to give me legal advice.
9. The matter resumed before Magistrate Pillai and my matter was then formally withdrawn.
…
On 25 July 2019, Mr Kyriazis filed an originating motion in this Court seeking judicial review of the DPP’s decision (‘the judicial review proceedings’) on the basis that the it was ‘clearly…based on a vitiating misconception’. In his amended originating motion, Mr Kyriazis sought an order quashing the DPP’s decision to discontinue the prosecution against DSS Kos, an order directing the DPP to prosecute the case, an order that I direct the Magistrates’ Court to quash its order of 29 May 2019, and to proceed with a hearing of the charge.
By summons dated 19 August 2019, the DPP made an application for summary judgment and costs pursuant to s 62 of the Civil Procedure Act 2010 (Vic) (‘CPA’) on the ground that Mr Kyriazis’ judicial review proceedings had no real prospect of success.
On 23 January 2020, the Judicial Registrar heard that application and on 24 February 2020, handed down his ruling[4] and delivered summary judgment in favour of the defendants. The Judicial Registrar also ordered that Mr Kyriazis pay the costs of the DPP, and that such costs were to be taxed in default of agreement.
[4]Kyriazis v Kos & Ors (summary judgment application) [2020] VSC 54 (‘Judicial Registrar’s ruling’).
In his written reasons, the Judicial Registrar stated that it was well established that the exercise of prosecutorial discretion, including decisions whether or not to prosecute, cannot be the subject of judicial review.[5] However, he noted that none of the authorities he was taken to included an attack on the exercise of prosecutorial discretion because the relevant law had been misapplied or misinterpreted, or because there had been a mistake of fact.[6] The Judicial Registrar accepted that there may be support for an argument that some decisions made by the DPP can be susceptible to judicial review, and summary judgment should not be used to stultify the development of the law in this way.[7] The Judicial Registrar considered that on that basis alone, it could not be said that Mr Kyriazis’ judicial review had only a fanciful chance of success or that there was no real question to be tried.[8]
[5]Judicial Registrar’s ruling (n 5), [33].
[6]Ibid, [34].
[7]Ibid, [32] and[41].
[8]Ibid, [41].
However, for separate reasons, the Judicial Registrar concluded that the judicial review had no real prospects of success. On the basis of the following two grounds, the Judicial Registrar formed the view that the totality of the evidence in support of the charge against DSS Koss was insufficient to support a prosecution.
(a) First, s 456AA(1) of the Crimes Act may be interpreted as being confined to applying only to circumstances in which a police officer is on duty at a designated place. The Judicial Registrar did not have to determine the interpretation of the sub-section.[9] Nevertheless, if that interpretation was correct, he indicated that there could be no breach of s 456AA as the Magistrates’ Court is not a ‘designated place’ under the Regulations.
[9]As it was not argued before him, ibid [40].
(b) Second, and separate to the applicability of the ‘designated place’ provision, the Judicial Registrar considered that for an offence to be committed under s 456AA(5), there must be proof of the following three elements:
(i) Per s 456AA(1), the police officer or protective services officer (‘PSO’) must request that a person state his or her name and address;
(ii) Per s 456AA(4), a person requested to state their name in accordance with subsection (1) must request the officer to state, orally or in writing, his or her name, rank, and place of duty;
(iii) Per s 456AA(5), the officer, in response to a request under subsection (4), refuses or fails to comply with the request; states a name or rank that is false in a material particular; states as his or her place of duty an address other than the name of the police station which is the police officer’s (or the PSO’s) ordinary place of duty; or refuses to comply with the request in writing if requested to do so.
The Judicial Registrar held that there was no evidence that DSS Kos asked Mr Kyriazis to state his name and address pursuant to s 456AA(1). Therefore, no offence could have been committed. Even on Mr Kyriazis’ evidence, the precondition of being asked his name and address by DSS Kos was not fulfilled. The Judicial Registrar concluded that:
The DPP could not have arrived at any conclusion other than the one that she did — that there was no reasonable prospect of conviction and the private prosecution initiated by Mr Kyriazis should be discontinued.[10]
[10]Ibid, [49].
Given the Judicial Registrar’s conclusion that Mr Kyriazis’ application for judicial review of the DPP’s decision had no real prospect of success, summary judgment was given in favour of the defendants.
On 6 March 2020, Mr Kyriazis filed a notice of appeal in respect of the orders made by the Judicial Registrar. The grounds of appeal can be summarised as follows:
(a) The Judicial Registrar erred in summarily dismissing the judicial review proceedings. It was contended that, although the DPP had sought summary dismissal on the ground that decisions of the DPP are not susceptible to judicial review, the Judicial Registrar dismissed the proceedings based on an interpretation of s 456AA of the Act, which was not put by the DPP. It was said that this had effectively stultified the development of the law and deprived Mr Kyriazis of potential remedies.
(b) The Judicial Registrar, in raising the matter of the proper interpretation of s 456AA on behalf of the DPP, and then dismissing the judicial review proceedings on that basis, gave rise to an apprehension of bias in the mind of a reasonable observer.
(c) The Judicial Registrar erred in awarding costs to the DPP as the summary dismissal was not granted on the basis of her application, and that even if the summary dismissal was granted correctly, it was inappropriate to award costs.
As this is a de novo hearing, I need not consider the substance of any such complaints. Rather, I am required to reconsider the substantive application, that being the DPP’s summary judgment application. In doing so, I am not fettered by the decision of the Judicial Registrar.[11]
[11]Bendigo and Adelaide Bank v Grahame [2020] VSC 86, [18] (‘Grahame’) citing Southern Motors Pty Ltd v Australian Guarantee Corporation Ltd [1980] VR 187, 190.
Why the DPP seeks summary judgment
A party to a proceeding can apply to the court for summary judgment if it considers that the other party’s claim has no real prospect of success under ss 61-62 of the CPA.
The principles which guide the exercise of such power were conveniently set out by the Court of Appeal in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd.[12] The key matters to consider include: whether the respondent to the application has a real as opposed to fanciful chance of success; that the power to terminate the proceedings should be exercised with caution; and that the discretion should not be exercised unless it is clear that there is no real question to be tried.[13]
[12](2013) 42 VR 27 (‘Lysaght’).
[13]Ibid, 42 [40]-[42].
At the hearing before the Judicial Registrar, the DPP confined her application to one ground for summary judgment. In this de novo hearing, she relied upon two separate grounds in support of her application for summary judgment. These grounds were as follows:
(i) First, that the DPP’s decision not to prosecute cannot be subject to judicial review; and
(ii) Second, the totality of the evidence does not support a charge in respect of s 456AA of the Crimes Act.
Mr Kyriazis disputed both grounds, and urged me to set aside the orders of the Judicial Registrar, dismiss the summary judgment application, and set the judicial review proceedings down for trial with appropriate timetabling orders.
I shall now consider each ground relied upon by the DPP.
i) That the DPP’s decision not to prosecute cannot be subject to judicial review
The DPP contends that the decision to take over and withdraw the charge against DSS Kos is an exercise of prosecutorial discretion not amenable to judicial review.
In support of this, the DPP referred to numerous cases in which courts have been invited, but have declined to intervene in the review of decisions made by both Attorney-Generals[14] and prosecutors.[15]
[14]Barton v The Queen (1980) 147 CLR 75.
[15]Maxwell v The Queen (1996) 184 CLR 501 (‘Maxwell’); Stefanovski v The Magistrates’ Court of Victoria [2004] VSC 313; Walsh v Director of Public Prosecutions [2005] VSC 469.
The leading authority relied upon by the DPP was the High Court decision in Maxwell v The Queen (‘Maxwell’),[16] an appeal of a decision by a trial judge to reject the appellant’s plea of guilty to a lesser offence, notwithstanding the acceptance of the plea by the prosecution. The High Court held that, save to prevent an abuse of process, a trial judge has no power to review a decision made by a prosecutor in respect of a plea of an accused person.[17]
[16]Maxwell (n 17).
[17]Ibid, 534-5.
In a joint judgment of Gaudron and Gummow JJ, it was said that:
It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other decisions, decisions as to the particular charge to be laid. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.[18]
[18]Ibid, 534.
In respect of this ground, Mr Kyriazis relied upon the same written submissions which he had provided to the Judicial Registrar. In short, he submitted that none of the authorities which the DPP referred to prevented judicial review of a decision made by a prosecutor that involved an error of law. In support of this, Mr Kyriazis relied upon part of the reasons of French CJ in a subsequent High Court decision of Likiardopoulos v The Queen (‘Likiardopoulos’).[19] In that case, the Court was required to consider if there had been an abuse of process in respect of the Crown’s prosecution of the appellant as an accessory to murder, while accepting guilty pleas to lesser offences from others who were alleged to be the principal offenders. The majority endorsed what had previously been said by Gaudron and Gummow JJ in Maxwell.[20]
[19](2012) 247 CLR 265 (‘Likiardopoulos’).
[20]Ibid, 280 [37].
However French CJ, who agreed with the majority, also expressed the following statement:
I would not wish my agreement with the reasons given in the joint judgment to be taken as acceptance of a proposition that the exercise of a statutory power or discretion by a prosecutor is immune from judicial review for jurisdictional error, however limited the scope of such review may be in practice.[21]
[21]Ibid, 270 [4].
The DPP sought to constrain the applicability of this comment, noting that it was obiter dicta, and submitted that the authorities relied upon constitute settled law that a prosecutor’s decision cannot be the subject of judicial review.
Mr Kyriazis referred me to a High Court decision of Spencer v Commonwealth of Australia (‘Spencer’).[22] He contended that it supported the proposition that he should not be shut out by an order for summary judgment, given the amenability of prosecutorial decisions to judicial review propounded by French CJ in Likiardopoulos. In Spencer, French CJ and Gummow J commented that, in considering an application for summary judgment, it is worth noting that:
…Where the success of a proceeding depends upon propositions of law apparently precluded by existing authority, that may not always be the end of the matter. Existing authority may be overruled, qualified or further explained. Summary processes must not be used to stultify the development of the law.[23]
[22](2010) 241 CLR 118 (‘Spencer’).
[23]Ibid, 132 [25].
In view of the above, I accept that summary judgment should not be ordered where there is an arguable case in respect of an alleged jurisdictional error by the DPP. However, for reasons that follow I am persuaded that the alternative ground in respect of s 456AA of the Crimes Act justifies the granting of the DPP’s application for summary judgment in respect of Mr Kyriazis’ judicial review proceedings.
ii) The totality of the evidence does not support a charge under s 456AA of the Crimes Act
There were two reasons upon which the Judicial Registrar considered that the totality of the evidence did not support the charge against DSS Kos.
First, the Judicial Registrar considered whether s 456AA(1) could be interpreted to apply only to a police officer on duty at a ‘designated place’. As the Magistrates’ Court was not a designated place, on this construction, it would follow that s 456AA(1) was incapable of being engaged to support the charge against DSS Kos. The Judicial Registrar, however, was not required to (and did not) ultimately determine the construction of this part of s 456AA(1).
Neither Mr Kyriazis nor the DPP supported an interpretation in which the designated place requirement attached to police officers, and the DPP urged me to reject it. In support of this submission the DPP contended that, in reading s 456AA plainly and in context, the word ‘or’ is disjunctive and is intended to create a distinction between the phrase ‘a police officer’ or ‘a protective services officer’ on duty at a designated place. Such a conclusion was said to be supported by:
(a) the title of Division 3 of the Regulations ’Exercise of powers by protective services officers at designated places’, under which reg 27 defines a ‘designated place’;
(b) the use of commas in other legislative contexts, using the same definitions as the Victoria Police Act 2013, to separate out the phrase ‘police officer’ and ‘protective services officer on duty at a designated place’;[24]
(c) the phrase ‘police officer on duty at a designated place’ is not used in any Victorian legislation; and
(d) the phrase ‘protective services officer on duty at a designated place’ is used in other Victorian legislation.[25]
[24]Bail Act 1977 (Vic) s 24(1); Control of Weapons Act 1990 (Vic) s 8G(1); Crimes Act 1958 (Vic) s 459(1); Graffiti Prevention Act 2007 (Vic) s 13(1); Liquor Control Reform Act 1998 (Vic) s 128; Magistrates’ Court Act 1989 (Vic) s 65(1); Mental Health Act 2014 (Vic) s 351(1); Road Safety Act 1986 (Vic) ss 62(1), 63, 64A(5); Summary Offences Act 1966 (Vic) s 6(1); Transport (Compliance and Miscellaneous) Act 1983 (Vic) ss 218B(2), 219(1), 220(1A), 229(1).
[25]Children, Youth and Families Act 2005 (Vic) s 598A(1); Control of Weapons Act 1990 (Vic) ss 10AA(1), 10GA(1); Corrections Act 1986 (Vic) ss 55P, s 77B(1A); Drugs, Poisons and Controlled Substances Act 1981 (Vic) ss 60BA(1), 82A(1); Liquor Control Reform Act 1998 (Vic) ss 126(2), 127(1)(ac); Road Safety Act 1986 (Vic) ss 77(2)(ac), 90G(1A); Transport (Compliance and Miscellaneous) Act 1983 (Vic) ss 220AA(ab), 221U(ba), 229(1); Victoria Police Act 2013 s 52(2).
Mr Kyriazis did not make any submissions to the contrary. He maintained that the reference to designated place in s 456AA(1) did not apply to police officers.
I consider the DPP’s submissions on this persuasive, and I am satisfied that the applicability of s 456AA is not confined to circumstances when a police officer is at designated place.
The second reason given by the Judicial Registrar was that the obligation for a police officer to provide his or her name and address in accordance with a request made under s 456AA(4), only arises when the police officer has first requested the person’s name and address pursuant to s 456AA(1).[26] The Judicial Registrar considered that, as there was no evidence DSS Kos had first requested Mr Kyriazis’ name and address, the necessary prerequisite in order to satisfy s 456AA(4) had not been met to support a charge against DSS Kos .
[26]Judicial Registrar’s ruling (n 5) [45]-[46].
The DPP relied upon this ground and submitted that on the totality of the evidence before the court, the requirement under s 456AA(1) had not been met, such that a prosecution under s 456AA(5) had no prospect of success and the judicial review proceedings should therefore be struck out.
My understanding of Mr Kyriazis’ response to this submission was that s 456AA(1) was a mere ‘technicality’ as, on his account, DSS Kos already knew Mr Kyriazis’ name and therefore it was not necessary for DSS Kos to make a request pursuant to s 456AA(1). Mr Kyriazis consistently maintained that the offence under s 456AA(5) had been committed as DSS Kos had acknowledged in his statement that Mr Kyriazis had demanded his name and DSS Kos had refused to provide it.
A plain reading of s 456AA(4) is that it is only if, and when, a person is asked by a relevant officer to state their name and address, pursuant to s 456AA(1), that they are entitled to ask the relevant officer to provide their name, rank, and place of duty (‘identifying information’).
There is no available evidence that DSS Kos asked Mr Kyriazis for his name and address. Mr Kyriazis’ statement exhibited to his affidavit asserts that he asked DSS Kos for his identifying information as DSS Kos had ‘accosted’ him and ‘uttered obscenities’ at him in a ‘demeaning and derogatory fashion’. Irrespective of the purported reasonableness of a request for identifying information by Mr Kyriazis in such circumstances, this does not give rise to an entitlement for such information under s 456AA(4).
I am not satisfied that a request under s 456AA(1) can be inferred in circumstances where the police officer already knows a person’s name. There was nothing advanced to support such an interpretation of that sub-section.
On the evidence before me, there is no basis to find that the grounds for a request for identifying information from an officer under s 456AA(4) were satisfied, and therefore no offence could have been committed pursuant to s 456AA(5). Accordingly, there is no reasonable prospect of a charge against DSS Kos being made out.
In view of this conclusion, I consider Mr Kyriazis’ judicial review application has no prospect of success as there was no error in the DPP’s decision to withdraw the charges.
Conclusion
Section 64 of the CPA states that even if there is no real prospect of success, the proceeding should not be disposed of summarily if the court is satisfied that it is not in the interests of justice to do so, or the dispute is of such a nature that a full hearing on the merits is appropriate.
Given the conclusion I have reached in this matter, there is nothing to persuade me that it is in the interests of justice for Mr Kyriazis’ judicial review application to proceeding to a full hearing on its merits. It cannot be asserted that there was any jurisdictional error in the DPP’s decision. If the obiter remarks of French CJ in Likiardopoulos are to be tested, this is not the case to do it in.
For the aforementioned reasons, I will order that the third defendant have judgment against the plaintiff in respect of the plaintiff’s amended originating motion for judicial review.
I will hear from the parties on the question of costs.
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