Kyriazis v Kos and Ors (summary judgment application) - [2020] VSC 54

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 03377

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

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JUDGE:	Caporale JR
WHERE HELD:	Melbourne
DATE OF HEARING:	23 January 2020
DATE OF JUDGMENT:	24 February 2020
CASE MAY BE CITED AS:	Kyriazis v Kos & Ors (summary judgment application)
MEDIUM NEUTRAL CITATION:	[2020] VSC 54

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APPLICATION FOR SUMMARY JUDGMENT – Judicial review of DPP’s decision to discontinue private prosecution – summary judgment application by DPP – decisions involved in the prosecution process insusceptible to judicial review – jurisdictional error – elements of an offence contrary to ss 456AA(5) Crimes Act 1958 (Vic) – no reasonable prospect of conviction – no real prospect of success – Public Prosecutions Act 1994 (Vic); s 62 Civil Procedure Act 2010 (Vic) considered – Silver Chef Rentals Pty Ltd v Makong Australia Pty Ltd [2019] VSC 703; Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27; Maxwell v The Queen (1996) 184 CLR 501; Stefanovski v The Magistrates’ Court of Victoria [2004] VSC 313; Walsh v Director of Public Prosecutions [2005] VSC 469; Likiardopoulos v The Queen (2012) 247 CLR 265; Barton v R (1980) 147 CLR 75; Spencer v Commonwealth of Australia [2010] HCA 28 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Appeared in person
For the First and Second Defendants	No appearance
For the Third Defendant	Mr M Fisher	Ms A Hogan, Solicitor for Public Prosecutions

HIS HONOUR:

Introduction and summary

On 1 May 2019 the plaintiff, Mr Kyriazis, filed a criminal charge in the Magistrates’ Court of Victoria alleging that the first defendant, Detective Senior Sergeant Peter Leo Kos, had committed an offence contrary to s 456AA(5)(a) of the Crimes Act 1958 (Vic) (Crimes Act). The details of the offence in the charge sheet state that the first defendant ‘did refuse to state his name and details’. Mr Kyriazis was the informant named in the charge sheet. Where the informant of a criminal charge is a private person the prosecution is often referred to as a ‘private prosecution’.

The Office of Public Prosecutions (the OPP) was made aware of the filing of the charge and twice wrote to Mr Kyriazis asking him to provide to the OPP any material that supported the allegation made against the first defendant. The letter also informed Mr Kyriazis that the Director of Public Prosecutions (the DPP) has the power to take over the prosecution and either conduct the prosecution herself or terminate the prosecution.

In response to the letters, Mr Kyriazis provided the OPP with some documents. From those documents, it became clear that it was alleged by Mr Kyriazis that the offence was committed at the Melbourne Magistrates’ Court on 10 July 2018.

On 24 May 2019 the…

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: [2020] VSC 54
Decision Date: 24 February 2020

CaseChat Overview and Summary

The case of Kyriazis v Kos and Ors concerns an application for summary judgment filed by the Director of Public Prosecutions (DPP) against the decision to discontinue a private prosecution. The application was heard by the Supreme Court of Victoria. The dispute revolves around the judicial review of the DPP's decision to discontinue a private prosecution initiated by the plaintiffs, Kyriazis, against the defendants, Kos and others. The court was required to determine whether the decisions involved in the prosecution process were insusceptible to judicial review and whether there was a jurisdictional error that could form the basis of a review.

The court examined whether the decisions involved in the prosecution process were amenable to judicial review and whether there was a jurisdictional error. It considered whether the elements of an offence contrary to sections 456AA(5) of the Crimes Act 1958 (Vic) could be reviewed and whether there was a reasonable prospect of conviction. The court also assessed whether there was a real prospect of success in the case, drawing on the provisions of the Public Prosecutions Act 1994 (Vic) and section 62 of the Civil Procedure Act 2010 (Vic). Relevant cases such as Silver Chef Rentals Pty Ltd v Makong Australia Pty Ltd [2019] VSC 703, Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27, Maxwell v The Queen (1996) 184 CLR 501, Stefanovski v The Magistrates’ Court of Victoria [2004] VSC 313, Walsh v Director of Public Prosecutions [2005] VSC 469, Likiardopoulos v The Queen (2012) 247 CLR 265, Barton v R (1980) 147 CLR 75, and Spencer v Commonwealth of Australia [2010] HCA 28 were considered to guide the court's reasoning.

The court held that the decisions involved in the prosecution process were insusceptible to judicial review and that there was no jurisdictional error. The court found that the elements of an offence contrary to sections 456AA(5) of the Crimes Act 1958 (Vic) could not be reviewed and that there was no reasonable prospect of conviction. Furthermore, the court concluded that there was no real prospect of success in the case. Consequently, the summary judgment application by the DPP was dismissed. The court's reasoning was grounded in the statutory provisions and relevant case law, leading to the conclusion that the application did not meet the criteria for judicial review.

Orders