Kyriazis v Kos; Kyriazis v Gunn; Kyriazis v Horton-Crundle
[2019] VCC 2285
•16 October 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. AP-19-1811
AP-19-1812
AP-19-1813
| VASILIOS KYRIAZIS | Applicant |
| v | |
| LEADING SENIOR CONSTABLE SHAUN GUNN | First Respondent |
| and | |
| PROTECTIVE SERVICES OFFICER JOHN HORTON-CRUNDLE | Second Respondent |
| and | |
| DETECTIVE SARGENT PETER KOS | Third Respondent |
---
JUDGE: | HIS HONOUR JUDGE PILLAY |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 October 2019 |
DATE OF DECISION: | 16 October 2019 |
CASE MAY BE CITED AS: | Kyriazis v Kos; Kyriazis v Gunn; Kyriazis v Horton-Crundle |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2285 |
REASONS FOR DECISION
---
Subject: CRIMINAL LAW – APPEAL
Catchwords: Appeals brought by applicant in respect of Orders made by the Magistrates’ Court at Melbourne on 31 July 2019
Legislation Cited: County Court Criminal Procedure Rules 2009; Personal Safety Intervention Orders Act 2010 (Vic), s3, s5, s6, s7, s11, s61, s91, s96; Magistrates Court (Personal Safety Intervention Order) Rules 2011; Court Security Act 1980
Decision: Appeals struck out.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr Kyriazis appeared in person | - |
| For the Respondents | Mr J Stoller | Victorian Government Solicitor’s Office |
HIS HONOUR:
1 The applicant, Mr Vasilios Kyriazis, alleges that on 10 July 2019, at the Melbourne Magistrates’ Court, he was the subject of “prohibited behaviour” by each of the three named respondents. As a result of this allegation, he lodged applications against each of the respondents pursuant to the Personal Safety Intervention Orders Act 2010 (Vic) (“the PSIO Act”) seeking intervention orders. Those applications were made in October 2018. Each of the matters came on for hearing on 31 July 2019 in the Magistrates’ Court. On that date, each of the matters was struck out.
2 Pursuant to s91 of the PSIO Act, Mr Kyriazis appeals to this Court. By reason of s96 of the PSIO Act, the appeal is conducted by way of rehearing. The powers that I am able to exercise at the rehearing of these matters is set out in s96(2) of the PSIO Act.
3 On 13 September 2019, the matters came on for directions hearing, at which time the respondents made application to strike out Mr Kyriazis’ claim. In particular, they argued that the lack of particularisation meant that Mr Kyriazis’ applications must fail. I did not entertain the respondent’s application at that time but made Orders that Mr Kyriazis make, file and serve on the respondent a witness statement or affidavit outlining the acts, facts, matters and circumstances which support the allegations that he had made and that support his application for personal safety intervention orders in each of the three matters, to be filed by 20 September 2019. Shortly thereafter, Mr Kyriazis filed with the respondents, materials, which run to twelve pages. In response, the respondents provided a written outline of submissions dated 3 October 2019. No written submissions were provided by Mr Kyriazis.
4 For the reasons which follow, I have determined to strike out each of the three appeals. I will deal with each of the matters separately, though by agreement at the hearing of the matters, the parties agreed that all three matters should be heard together.
The allegations against Mr Gunn
5 The allegations that are made against Mr Gunn are contained at pages 3 and 4 of the materials that Mr Kyriazis provided to the Court on the morning of the hearing. His allegations are in the following form:
“Whilst I was seated behind Mr Koromilas in the court room and whilst the matter had proceed before Mag[istrate] Granger, I was then confronted by Mr Shaun Gunn, whom was the prosecutor at that time, alleging that I was making ‘smart arse’ remarks and in a loud voice in full view of the gallery stated to me to ‘shut my mouth’ several times for no apparent reason. …
Moments later Mr Gunn turned to me and began alleging that I was recording in court when I wasn’t, which I believe that Mr Gunn was again attempting to incite me into displaying some sort of untoward behaviour in order for him to justify his confronting me. … .”
6 For the purpose of his application, Mr Stoller who appeared on behalf of Mr Gunn, and also for the other respondents, submitted that in order to succeed in his application, I would have to find in accordance with the Magistrates Court (Personal Safety Intervention Order) Rules 2011 (“the Rules”) that the Court may order an application be struck out if it is, relevantly, “scandalous, frivolous or vexatious”. He conceded, and I accept, that the Court’s power to strike out a matter should be exercised with caution. It should only be exercised where the Court is satisfied that there is no real question to be tried. With that in mind, Mr Stoller proceeded on the basis that even if the allegations against Mr Gunn were accepted, the applicant still could not satisfy the tests as set out in the PSIO Act. Specifically, he made submissions that the application against Mr Gunn ought be struck out for the following reasons:
(a) that the allegations against Mr Gunn could not be considered “prohibited behaviour” within the meaning of s5 of the PSIO Act;
(b) even if the behaviour could be construed as “prohibited behaviour” pursuant to s61(1)(a) of the PSIO Act, it could not be demonstrated that the prohibited behaviour was likely to continue;
(c) associated with the above point was that the behaviour of Mr Gunn could not objectively be found to have caused a reasonable person to fear for his or her safety in accordance with s61(1)(a)(i)(B) of the PSIO Act;
(d)that in accordance with s11 of the PSIO Act, where a person is performing official duties for the purposes of the enforcement of the criminal law or the administration of any Act, the PSIO Act will not apply, and here, as Mr Gunn was the police prosecutor, he was performing an official duty in the enforcement of the criminal law. I interpolate that Mr Stoller accepted that the behaviour of Mr Gunn might well be said to be impolite and inappropriate but was nevertheless clearly in the course of his duties. Mr Stoller also submitted that in querying whether Mr Kyriazis was recording matters, Mr Gunn was also having regard, and acting in accordance with, the Court Security Act 1980 which forbids the recording of proceedings without leave.
(e)lastly, that in accordance with s61(c) of the PSIO Act, it was not appropriate in all the circumstances of the case to make the order sought. Specifically, he referred to the purposes of the PSIO Act, which were to protect the safety of victims of sexual assault and harassment.
7 Mr Kyriazis, in reply, alleged that Mr Gunn’s comments were “harassment” within the meaning of s5 of the PSIO Act. Mr Kyriazis could not, however, deal with the point raised as to the effect of s61(1)(a)(i)(A), which is that the prohibited behaviour was likely to continue or occur, or do so again, by reference to the material that he had placed before the Court.
8 On this basis alone, I find there are sufficient grounds to uphold the respondent’s application. While it is not necessary to go further than this, in my opinion, it is clear that Mr Gunn was clearly in the course of official duties as specified in s11, either as a prosecutor or acting pursuant to the Court Security Act 1980, and in those circumstances, the PSIO Act has no application.
9 I further find that in all the circumstances, it is not appropriate to make the order sought by Mr Kyriazis on the basis that the alleged offending seems to have occurred on one day only and not thereafter. This does not seem to be in keeping with the purposes of the PSIO Act, which is aimed at a deterrence of a course of conduct.
The allegations against Mr Horton-Crundle
10 At page 4 of his materials, Mr Kyriazis stated the following:
“When we reached the public area of the 3rd floor outside the court room, we were ac[c]osted by P.S.O’s. Mr Horton-Crundle and a female colleague directed me to follow them where they took me to a room. Mr Horton-Crundle began to handle my phone looking for recordings and began to question me regarding me recording. I believe Mr Gunn incited the P.S.O’s as he knows me and has known me for many years same as Mr Horton-Crundle.
Mr Horton-Crundle found nothing and then he ‘released’ me … .”
11 Mr Stoller made the same submissions in respect of Mr Horton-Crundle as he did in respect of Mr Gunn.
12 In reply to my questioning, Mr Kyriazis confirmed that he proceeded on the basis that there was no harassment by Mr Horton-Crundle but that the behaviour of Mr Horton-Crundle constituted an “assault” within the meaning of s5 of the PSIO Act. I took Mr Kyriazis to s6 of the PSIO Act, which defined assault. He confirmed that he proceeded on the basis that Mr Horton-Crundle had “verbally” assaulted him. Mr Kyriazis confirmed that that was the only way he wished to put the case against Mr Horton-Crundle.
13 Given that is the way that Mr Kyriazis has proceeded, and there seems no other interpretation to be given to his assertion, I find that the alleged behaviour could not come within the meaning of “assault” as set out at s6 of the PSIO Act. On that basis, I find that that it could not constitute prohibited behaviour. I would find for Mr Horton-Crundle on this basis alone. If it were necessary for me to consider the matter further, I would reiterate what I have stated above, that I consider Mr Horton-Crundle to be acting in accordance with his official duties in determining whether or not a recording had taken place within the court room without leave and in contravention of s3(3) the Court Security Act.
14 I would grant Mr Horton-Crundle’s application to strike out Mr Kyriazis’ application against him.
The allegations against Mr Kos
15 Mr Kyriazis alleges the following matters at page 5 of his materials:
“On making my way to the ground floor in order to find Mr Koromilas and his friend, I walked near the ground floor stairs and this was when a person in a suit wearing a police strap around his neck ac[c]osted me and began referring to me as the ‘puppet master’. This caused me to look towards him and I then asked him why he was referring to me as the ‘Puppet Master’. His response was that he saw me in the court sitting behind my ‘mate’ and ‘licking his arse’ … .”
16 Mr Stoller repeated the submissions he had made in support of Mr Gunn’s application and set out above. He did not however rely on the official duties exemption pursuant to s11 of the PSIO Act.
17 Mr Kyriazis characterised the actions of Mr Kos as both “assault” and “harassment” within the meaning of s5 of the PSIO Act.
18 I find that the actions of Mr Kos could not constitute an “assault” within the meaning of the PSIO Act.
19 “Harassment” is defined in s7 of the PSIO Act and requires a course of conduct by one person towards another that is demeaning, derogatory or intimidating. As alleged, there is no evidence to suggest that the conduct of Mr Kos could constitute harassment. I would accept that it was impolite and rude but I find that it did not rise to the level of being “harassment” within the meaning of the PSIO Act. Furthermore, given the allegations made by Mr Kyriazis are confined to 10 July 2018, I find that it is impossible for him to demonstrate that such prohibited behaviour meets the test specified in s61(1)(a), that it is likely to continue.
Conclusion
20 For the matters set out above, I uphold each of the applications made by Mr Gunn, Mr Horton-Crundle and Mr Kos.
21 I strike out each of the appeals in these matters.
- - -
0
0
1