Kyriazis v Protective Services Officer Horton-Crundall (Ruling)
[2024] VCC 248
•9 April 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| APPEALS AND POST SENTENCE APPLICATION LIST |
Case No. AP-22-0418
| VASILIOS KYRIAZIS | Appellant |
| v | |
| PROTECTIVE SERVICES OFFICER JOHN HORTON-CRUNDALL | Respondent |
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JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 December 2023, 29 January 2024 and 26 February 2024 | |
DATE OF RULING: | 9 April 2024 | |
CASE MAY BE CITED AS: | Kyriazis v Protective Services Officer Horton-Crundall (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 248 | |
RULING
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Subject:PERSONAL SAFETY INTERVENION ORDER APPEAL
Catchwords: Summary dismissal by Magistrates’ Court of application for personal safety intervention order against a protective services officer (“PSO”) – permission to audio-record appeal proceeding – no factual, legal or discretionary error identified by the appellant – appellant has not disconnected alleged conduct from PSO’s work duties – appellant has not shown whether any alleged prohibited behaviour would continue or happen again – Magistrate’s original order confirmed – appeal dismissed
Legislation Cited: Court Security Act 1980 (Vic), s2, s2A, s3 and s4A(4)(a)(i); Personal Safety Intervention Orders Act 2010 (Vic), s2, s11, s61, s96 and s126; Supreme Court (General Civil Procedure) Rules 2005 (Vic), O.56; Magistrates’ Court General Civil Procedure Rules 2020 (Vic), r1.02 and r23.01; Magistrates’ Court Act 1989 (Vic), s16; Magistrates’ Court (Personal Safety Intervention Orders) Rules 2021 (Vic), r2.01 and r6.02
Cases Cited:Kyriazis v Kos; Kyriazis v Gunn; Kyriazis v Horton-Crundle [2024] VCC 232; Kyriazis v County Court of Victoria (No 1) [2017] VSC 636; Kyriazis v Horton-Crundall [2021] VSC 196; AAA v County Court of Victoria [2023] VSC 13; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; Tomasevic v Travaglini (2007) 17 VR 100; Neil v Nott (1994) 68 ALJR 509; Doughty-Cowell v Kyriazis [2018] VSCA 216; Roberts v Harkness (2018) 57 VR 334; Kyriazis v Victoria Police [2022] VSC 596; Kyriazis v Victoria Police (General) [2011] VCAT 619; Kyriazis v Kos and Ors (summary judgment application) [2020] VSC 54; Harkness v Roberts; Kyriazis v County Court of Victoria (No 2) [2017] VSC 646; Kyriazis v Detective Senior Sergeant Peter Leo Kos [2022] VSC 569; Lazarides v Di Lorenzo & Ors [2019] VSC 693; Rajski v Scitec Corporation Pty Ltd [1986] NSWCA 1; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438
Ruling: The Magistrate’s order made on 29 April 2022 is confirmed.
The appeal is dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | The appellant appeared in person with Mr Cvitkovic (13 December 2023) and Mr P Yii (29 January 2024) as McKenzie friends | - |
| For the Respondent | Mr P H Cadman | Victorian Government Solicitor’s Office |
HER HONOUR:
Introduction
1Over the years, Mr Vasilios Kyriazis has had occasion to attend various courts in Melbourne. When he does so, he prefers to bring his own recording device and to make an audio recording of events in which he is involved at court.
2
In performance of their duties and functions under the Court Security Act 1980 (Vic) (“CSA”), various protective services officers (“PSOs”) have interacted with
Mr Kyriazis in relation to his possession of such a device on court premises.
3In this proceeding, Mr Kyriazis appeals from a decision of the Magistrates’ Court made on 29 April 2022 summarily dismissing his application for an intervention order against Mr Horton-Crundall under the Personal Safety Intervention Orders Act 2010 (Vic) (“PSIO Act”).
4Mr Kyriazis appeared in person, both in this Court and in the Magistrates’ Court.
5Mr Horton-Crundall was employed as a PSO in the courts’ precinct. His interactions with Mr Kyriazis took place in that context. PSOs are authorized officers for the purposes of administering the CSA.[1]
[1]See s2 and s2A of the Court Security Act 1980 (Vic) (“CSA”)
6There are two issues for determination in this appeal. They are interrelated by virtue of the operation of s11 of the PSIO Act which, relevantly, provides that the PSIO Act does not apply to a person performing official duties for the purposes of administering any Act:[2] (emphasis added)
(a) the first issue is whether Mr Kyriazis had demonstrated to the Magistrate that Mr Horton-Crundall’s alleged actions were sufficiently disconnected from his duties as a PSO; and
(b) the second issue is whether the Magistrate made any legal, factual or discretionary errors in disposing of Mr Kyriazis’ application for an intervention order.
[2] See s11(b) of the Personal Safety Intervention Orders Act 2010 (Vic) (“PSIO Act”)
Summary of findings
7For reasons which follow, I find that the decision of the Magistrate is not affected by legal error. If I am wrong about that, any error was not material and would not invalidate the Magistrate’s decision.
8I find that Mr Kyriazis had not disconnected Mr Horton-Crundall’s conduct from his work duties such as to avoid the operation of s11 of the PSIO Act. Therefore section 11 applied and the Magistrate was correct to summarily dismiss the application.
9I find that even if Mr Kyriazis could demonstrate that section 11 did not apply, Mr Kyriazis had not shown any prima facie entitlement to an intervention order as he did not show that any alleged prohibited behaviour would continue or happen again which is a legal requirement for the grant of an order.[3]
[3]See s61(1)(a)(i)(A) of the PSIO Act
10None of Mr Kyriazis’ grounds of appeal have any merit.
Previous application for an intervention order against Mr Horton-Crundall
11This is the second time Mr Kyriazis has attempted to obtain an intervention order against Mr Horton-Crundall.
12
In Mr Kyriazis’ first application, he alleged that he was outside a particular court room when Mr Horton-Crundall and a colleague approached him. They then allegedly asked him to follow them into a room and began looking for recordings on his phone and questioned him about recordings. Mr Kyriazis alleged that
Mr Horton-Crundall verbally assaulted him.
13
On 31 July 2019, that application was struck out by the Magistrates’ Court.
Mr Kyriazis appealed that decision to the County Court and it was heard before his Honour Judge Pillay on 8 October 2019.
14On 16 October 2019, Judge Pillay struck out Mr Kyriazis’ appeal from that decision.[4] Judge Pillay found that due to the operation of s11, the PSIO Act did not apply to conduct engaged in by PSOs and members of Victoria Police when performing official duties. Accordingly, Mr Kyriazis could not apply for an order under the PSIO Act.
[4]Court Book (“CB”) 81-87, being (at the time) an unreported ‘Reasons for Decision’ of his Honour Judge Pillay, with the citation reference being ‘Kyriazis v Koz; Kyriazis v Gunn; Kyriazis v Horton-Crundle’. As at the time of writing this Ruling, Judge Pillay has since published that decision as Kyriazis v Kos; Kyriazis v Gunn; Kyriazis v Horton-Crundle [2024] VCC 232
Application to record current proceeding
15In 2017, Mr Kyriazis applied under O.56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) for review of a decision of a County Court Judge.[5] Bell J granted Mr Kyriazis leave to record that proceeding. At paragraph 1, his Honour said:
“At the start of the hearing of the application in this court, Vasilios Kyriazis sought permission to audio-record the proceeding under s 4A(4)(a)(i) of the Court Security Act 1980 (Vic). These are my reasons for granting that permission.”
(emphasis added)
[5]Kyriazis v County Court of Victoria(No 1) [2017] VSC 636
16Section 4A of the CSA provides that it is an offence to intentionally make a recording of a proceeding except in accordance with ss(2), (3) or (4).
17Subsection (4) provides that a person may make a recording of a proceeding if express written permission is given by a judicial officer, whether in respect of a specific proceeding or a class of proceedings or generally.
18
On 13 December 2023, pursuant to s4A(4)(a)(i) of the CSA, I granted
Mr Kyriazis express written permission to make his own personal audio-recording of the current appeal proceeding on the same basis as it was granted to him by Bell J.[6]
[6]Ibid at paragraph [16]
19During the hearing of this appeal, Mr Kyriazis strenuously maintained there was no need for permission. Mr Kyriazis appears to have misunderstood the scope of the order made by Bell J. Mr Kyriazis was under the impression that the order permitted him to make recordings in any court at any time, without permission of the presiding judicial officer. It may be that this misunderstanding has contributed to Mr Kyriazis’ subsequent unfortunate interactions with PSOs at court.
Background to the current proceeding
20On 15 November 2019, Mr Kyriazis attended the Supreme Court because he had made an application “in regards to a habeas corpus”[7] and intended to apply to record that proceeding on behalf of “the person”.[8] On the last day of hearing of this appeal, Mr Kyriazis told the Court that he was in fact there in support of his friend, Rohan Brown, who was a litigant that day.[9]
[7]County Court Transcript of 13 December 2023 (“CCT1”), Transcript (“T”) 84, Line/s (“L”) 27
[8]Ibid at T85, L26
[9]County Court Transcript of 26 February 2024 (“CCT2”), T59
21Mr Horton-Crundall was working as a PSO at the Supreme Court when Mr Kyriazis attended.
22On 11 December 2019, at the Melbourne Magistrates’ Court, Mr Kyriazis applied for a personal safety intervention order against Mr Horton-Crundall. In his application, Mr Kyriazis alleged the following:
“THE RESPONDENT IS A PROTECTIVE SERVICES OFFICER FROM VICTORIA POLICE. I HAVE KNOWN HIM FOR APPROXIMATELY 10 YEARS.
ON 15/11/2019 AT THE ENTRANCE TO THE SUPREME COURT I WAS RESTRICTED, ABUSED, THREATENED, ASSAULTED, STALKED AND HARASSED. POLICE WERE CALLED AND ATTENDED.
SIMILAR INCIDENTS TO THIS HAVE OCCURRED ON 10/7/18, 6/6/19, 29/5/19, 28/5/19.
HE HAS A PERSONAL VENDETTA AND IMPLICATES HIS COLLEAGUES. I HAVE MADE FORMAL COMPLAINTS AND FORWARDED AND (SIC) AFFIDAVIT WITHOUT PROPER RESPONSES.”[10]
[10] CB 90
23On 12 November 2021,[11] Mr Kyriazis filed a handwritten document in the Magistrates’ Court entitled “Further and Better Particulars”.[12] That document contained particulars of the behaviour alleged by Mr Kyriazis which relevantly included:
[11]Pursuant to Orders made by the Magistrates’ Court on 13 October 2021 as found at CB 96
[12]CB 4-6
“On the day of the listed incident Mr Crundall
1) Denied me access to the Supreme Court.
2) Alleged that I was recording in the court.
3) Placed me under arrest.
4) Called police to attend.
5) Kept me waiting for the police to arrive.
6) Then decided to unarrest me when police arrived stating that I can leave.
7) I remained to talk with police.
8) Mr Crundall made false statement to police regarding my movement and behaviour.
Further on the 30 Aug 2019 I was assaulted by Mr Crundall, without valid reason, at the Magistrates Court in Melb where he dragged me down the stairs injuring me. The matter was brought to the attention of the county court Vic before Mr Pillay (Judge)
Further On/around the 29th Aug 2019 Mr Crundall approached my witness and began stating breaches of law, intending to remove my witness, without proper reason nor authority.
Further on the 16th April 2020 [scil 2021] I attended the Supreme Court for my Review pertaining to the IVO against Mr Crundall who was posted outside the County Court and where he began glaring at me as I walked past.
Further on the 22nd April 2020 as I was attending the Supreme Court Mr Crundall was again posted at the County Court and was again glaring at me as I walked past.
Further on the 28th of April 2020 I attended the probate office and after conducting my business and exiting the building Mr Crundall was waiting outside with a colleague where I had to walk between them in order to leave the area. This time both were glaring at me.”[13]
[13]CB 4-5
24On 16 April 2021 (not 16 April 2020 as stated in the above particulars), Mr Kyriazis appeared before Gorton J seeking Judicial Review of a decision by a Magistrate to refuse to grant him an interim intervention order against Mr Horton-Crundall.[14]
[14]Kyriazis v Horton-Crundall [2021] VSC 196
25Gorton J did not exercise his discretion to quash the decision as it was an interim decision, but observed the following:[15]
(a) the claim faces considerable difficulties;
(b) Mr Kyriazis has already failed in an application for an intervention order heard in the County Court on 8 October 2019. This would likely limit Mr Kyriazis in this proceeding to interactions after that date; and
(c) on its face, the interaction on 15 November 2019 would probably not amount to prohibited behaviour, nor cause a reasonable person to fear for their safety, nor be sufficiently disconnected from Mr Horton-Crundall’s work duties to avoid the operation of the PSIO Act.
[15] Ibid at paragraph [30]
26It should be noted that the allegation by Mr Kyriazis that he was dragged down the stairs was not referred to in Judge Pillay’s Reasons for Decision.[16] The Reasons provide that in that hearing, Mr Kyriazis proceeded only in relation to an alleged “verbal assault” by Mr Horton-Crundall.
[16]Kyriazis v Kos; Kyriazis v Gunn; Kyriazis v Horton-Crundle [2024] VCC 232 at paragraph [12]
27In this appeal, Mr Kyriazis accepted that each time he interacted with Mr Horton-Crundall, it was always at court, and usually about his voice recorder.[17]
[17]CCT1, T97
28On 28 April 2022, Magistrate Gilligan heard an application to strike out Mr Kyriazis’ application[18]. Mr Kyriazis appeared in person and made submissions to the Magistrate.
[18]The application for intervention order contained an error in the spelling of the respondent’s name. The correct spelling is John Horton-Crundall as provided in his affidavit sworn on 30 November 2021 which is found at CB 63, not Horton-Crundle
29
Mr Kyriazis had issued a number of subpoenas for witnesses to come to the Magistrates’ Court to give evidence about the events alleged in his application.
Mr Kyriazis was aggrieved by the decision of the Magistrate as it prevented him from calling his witnesses.
30On his appeal to this Court, Mr Kyriazis renewed his application to call witnesses to give evidence about the events in question.
31On 29 April 2022, Magistrate Gilligan summarily dismissed Mr Kyriazis’ application pursuant to r23.01 of the Magistrates’ Court General Civil Procedure Rules 2020 (Vic)[19] (“MCGCP Rules”).
[19]Made pursuant to section 16 of the Magistrates’ Court Act 1989 (Vic); see also r1.02 of the MCGCP Rules
32The Magistrate also took into account whether a strikeout would grant Mr Kyriazis a right of reinstatement, and determined that his application for an intervention order ought also to be refused.[20]
[20]Magistrates’ Court Transcript of 28 April 2022 (“MCT1”), T28-29
33The alternate ground relied upon by the Magistrate for the refusal was that there was no prima facie basis established by Mr Kyriazis’ application. The reason for that was that the last of the alleged conduct occurred on 28 April 2020 (two years prior to the hearing) and Mr Kyriazis had not shown in his application that it was likely any alleged prohibited behaviour of Mr Horton-Crundall would continue or happen again.[21]
[21]Magistrates’ Court Transcript of 29 April 2022 (“MCT2”), T65, L22-27
Appeal by rehearing
34Pursuant to s96 of the PSIO Act, the appeal is to be conducted by way of rehearing. On rehearing, this Court may confirm, set aside or vary the Magistrate’s decision and exercise any other powers that the Magistrates’ Court may have exercised.
35To enliven the jurisdiction of this Court, Mr Kyriazis must demonstrate that the Magistrate made a factual, legal or discretionary error. [22]
[22]AAA v County Court of Victoria & Ors [2023] VSC 13 at paragraph [50]
36The appeal was listed on 13 December 2023 and Mr Kyriazis, together with his McKenzie friend, made submissions to the Court. It was adjourned before it could be concluded on that day because Mr Kyriazis told the court that had not received all of the respondent’s filed documents. The Court provided a copy of all the documents to Mr Kyriazis and re-listed the matter for 29 January 2024, however it was further adjourned as Mr Kyriazis indicated he had not had a chance to read and understand the transcript from the hearing on 13 December 2023.
37The matter concluded on 26 February 2024 (the second day of hearing). Mr Kyriazis was self-represented on this day and appeared without a McKenzie friend.
38With the consent of counsel for Mr Horton-Crundall, Mr Kyriazis was given leave to rely on fresh evidence.[23] This evidence was a voice recording of his interaction with Mr Horton-Crundall on 15 November 2019.[24]
[23]In AAA v County Court of Victoria & Ors (ibid) at paragraph [29], John Dixon J said that “If the appellate court believed a particular piece of fresh evidence was pertinent and necessary for it to fulfill its obligations under the Act, it could allow the fresh evidence to be introduced by exercising judicial discretion upon an application to introduce fresh evidence during a strict rehearing”
[24]This recording was given an exhibit number after the conclusion of the hearing on 26 February 2024 in Chambers, being Exhibit A1
39Transcript was ordered for the two substantive hearings on 13 December 2023 and 26 February 2024.
The summary dismissal by the Magistrate
40On 29 April 2022, the Magistrate summarily dismissed Mr Kyriazis’ application pursuant to r23.01 of the MCGCP Rules which (relevantly) provides:
“Stay or judgment in proceeding
(1) If a proceeding generally or any claim in a proceeding––
(a) is scandalous, frivolous or vexatious; or
(b) is an abuse of process of the Court––
the Court may upon the application of a defendant who has filed a defence stay the proceeding generally or in relation to any claim or give judgement for the defendant in the proceeding generally or in relation to any claim.”
41In his decision, the Magistrate referred to an email to the Court sent on behalf of Mr Horton-Crundall which cited this provision as the legislative basis for the strike out.[25]
[25]MCT2, T63, L19-24
42No submissions on this aspect of the Magistrate’s decision were made during the appeal. When the Court retired to consider its decision, additional submissions were invited from both parties on the question of which Rules were applicable, being either the Magistrates’ Court (Personal Safety Intervention Orders) Rules 2021 (Vic) (“MCPSIO Rules”) or the MCGCP Rules.
43Mr Kyriazis did not provide submissions despite a number of opportunities being afforded to him to do so.
44The respondent provided written submissions dated 13 March 2024. In essence, those submissions provided that once the Magistrate found that the PSIO Act did not apply to Mr Kyriazis’ application, the Magistrate could not rely on the MCPSIO Rules which are made under the PSIO Act. As such it was appropriate to dispose of Mr Kyriazis’ purported application as an abuse of process under the MCGCP Rules.
45I accept that submission. The Magistrate accepted that Mr Horton-Crundall was acting in his capacity as a PSO and referred specifically to Mr Kyriazis’ concession that he was working as a PSO “in relation to all of the incidents alleged”[26]. The Magistrate therefore found that section 11 applied to conduct engaged in by Mr Horton-Crundall in his alleged interactions with Mr Kyriazis at court and the PSIO Act did not apply. As such, the Magistrate relied on other provisions in order to dispose of Mr Kyriazis’ application. The Magistrate was correct to apply MCGCP Rules.
[26]MCT2, T64, L24-32
46If I am wrong about that and the Magistrate applied the incorrect provision, that would constitute an error of law.
Would such an error invalidate the Magistrate’s decision and allow Mr Kyriazis to succeed in his appeal?
47Not every error is of such magnitude as to invalidate a decision. There are two basic considerations in the assessment of the decision.
48The first consideration is whether it was a purpose of the legislation that an act done in breach of the provision should be invalid.[27]
[27]Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at paragraph [93]
49There is nothing in the PSIO Act which would lead to a conclusion that Parliament intended non-compliance to invalidate the decision.
50Given that the Magistrate was considering a purported application under the PSIO Act, the application could have been considered under the MCPSIO Rules.
51Rule 2.01 of the MCPSIO Rules provides that:
“Effect of non-compliance
(1) A failure to comply with these Rules is an irregularity and does not render a proceeding or a step taken, or any document or order therein, a nullity.
(2) If there has been a failure to comply with these Rules, the Court may exercise its powers under these Rules to allow amendments and to make orders dealing with the proceeding generally.”
52Therefore, any “failure” by the Magistrate to apply the MCPSIO Rules would be an irregularity and would not render the Magistrate’s decision a nullity.
53The second consideration is whether any failure to apply the MCPSIO Rules constitutes a material error.
54In this context “material” means an error which denied Mr Kyriazis the possibility of a successful outcome or failed to take into account a mandatory consideration, which, in all the circumstances, was so significant that a failure to take it into account could well have materially affected the decision that was made.[28]
[28]Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123 at paragraph [30]
55If the failure to apply the correct provisions was not a material error, then the Magistrate’s decision would not be invalidated.
56Rule 23.01 of the MCGCP Rules which was applied by the Magistrate, is expressed in very similar terms to r6.02 of the MCPSIO Rules, which provides:
“Striking out proceeding
If a proceeding––
(a) is scandalous, frivolous, or vexatious; or
(b) may prejudice, embarrass or delay the fair hearing of the proceeding; or
(c) is otherwise an abuse of the process of the Court––
the Court may order that the whole or part of the application be struck out or amended.”
57The provision applied by the Magistrate was narrower in operation. It did not include the additional ground of “prejudice, embarrass or delay the fair hearing of the proceeding” as contained in r6.02(b) of the MCPSIO Rules.
58Therefore, had the Magistrate applied the MCPSIO Rules, it would have been open for him to strike the application out on the same legislative basis of “frivolous, or vexatious” and “an abuse of the process”, as well as on the additional ground of “prejudice, embarrass or delay the fair hearing of the proceeding”.
59I find therefore that even if there was an error, it was not material and it would have made no difference to the Magistrate’s decision. In other words, applying the MCGCP Rules did not deprive Mr Kyriazis of a different outcome.
60As there has been no error demonstrated by Mr Kyriazis, the jurisdiction of the Court has not been enlivened. That disposes of Mr Kyriazis appeal. He has been unsuccessful.
61In the event I am wrong about that, I turn to consider Mr Kyriazis’ grounds of appeal.
Mr Kyriazis’ grounds of appeal
62Mr Kyriazis relied on the following grounds of appeal, as contained in his Notice of Appeal dated 17 June 2022, being:
“INCORRECT APPLICATION BY RESPONDENT
MATTER STRUCK OUT ON NO GROUNDS STATED ON THE RECORD.”[29]
[29]CB 89
63Mr Kyriazis was asked to explain these grounds.[30] He told the Court that:
[30]CCT1, T43, L24-31
(i) he was not given clear information by the Magistrate about what a strike out application might be and what his rights were;[31]
[31]CCT1, T63, L16 – T64, L1
(ii) the Magistrate failed to explain the procedure in court to him;[32]
[32]CCT1, T59, L3 – T60, L3
(iii) the Magistrate and counsel for the defendant were having their discussions, did not include him and he did not get a say. Mr Kyriazis described this as a conspiracy to defeat him;[33]
(iv) the Magistrate described s11 in a way he did not understand;[34]
(v) Mr Horton-Crundall was acting outside the scope of his duties as a PSO and therefore s11 did not apply;[35]
(vi) Mr Kyriazis is a targeted individual[36] and it was Mr Horton-Crundall who was targeting him;
(vii) Mr Horton-Crundall was instructed by someone to act in a particular way[37] and he was acting beyond his capacity; and
(viii)
the Magistrate should have known what the relevant law was and told
Mr Kyriazis what he should have done to achieve his purpose.[38]
[33]CCT1, T64-66
[34]CCT1, T75, L13 – T76, L8
[35]CCT1, T71-73
[36]CCT1, T139, L15-22
[37]CCT1, T139, L2-16
[38]CCT1, T139, L28 – T142, L2
64Grounds (i), (ii) and (iv) are procedural fairness grounds. Mr Kyriazis is asking the Court to review the transcript and to consider whether he was given appropriate assistance and guidance as a self-represented litigant.
65Ground (iii) is a natural justice ground. Mr Kyriazis is asking the Court to review the transcript and to consider whether he was given an opportunity to tell the Court his position with respect to the application being made on behalf of the respondent.
66Ground (v) asserts the Magistrate applied the wrong test.
67It is not clear what errors grounds (vi) and (vii) are alleging. It appears they might be alleging malice as a motivation, rather than a genuine attempt to act in accordance with the CSA.
68Ground (viii) asserts that the Magistrate ought to have given Mr Kyriazis legal advice.
Submissions on behalf of Mr Horton-Crundall
69Counsel for Mr Horton-Crundall submitted that:
(a) it was appropriate for the Magistrates’ Court to determine whether or not it had jurisdiction as a preliminary or threshold question;[39]
(b) there was no legal, factual or discretionary error associated with the decision of the Magistrate;[40] and
(c) the fresh evidence supports the Magistrate’s findings and allows this Court to make a similar finding, namely that Mr Horton-Crundall was performing his official duties at the time he interacted with Mr Kyriazis and that the PSIO Act did not apply.
[39]CCT1, T122-123 and T127, L16-21
[40]CCT1, T127, L11-14; see also, AAA v County Court of Victoria & Ors (supra) at paragraph [67]
Consideration of the appeal grounds
Procedural fairness and the general duty of judicial officers to assist
self-represented litigants70As part of their overriding obligation to ensure a fair trial, judges (and magistrates) have a positive duty to give proper assistance to self-represented litigants, both in civil and criminal trials and in interlocutory proceedings such as applications to strike out pleadings. In relation to the duty of magistrates, the application of the duty would have to take into account the particular demands of those jurisdictions.[41]
[41]Tomasevic v Travaglini (2007) 17 VR 100 at paragraph [89]
71What a judge must do to assist a litigant depends on the litigant, the nature of the case and the litigant’s intelligence and understanding of the case.[42]
[42]Neil v Nott (1994) 68 ALJR 509, cited with approval by Bell J in Tomasevic v Travaglini (ibid) at paragraphs [98]-[99]
72In considering what is reasonable for the purposes of providing a self-represented party an opportunity to present his case and advance submissions, the following matters must be taken into account:[43]
(i) the nature and complexity of the issues in dispute;
(ii) the nature and complexity of the submissions which the party wishes to advance;
(iii) the significance to that party of an adverse decision; and
(iv) the competing demands of the time and resources of the Court.
[43]Ibid, citing Roberts v Harkness (2018) 57 VR 334
73The practical question is whether the party in question was given a reasonable opportunity to present his case, to advance submissions in support and to know the case to be advanced by the opposing party and make submissions in opposition to the case.[44]
[44]Doughty-Cowell v Kyriazis [2018] VSCA 216 at paragraph [63]
The nature of the case and Mr Kyriazis’ intelligence and understanding of the case
74There was only one issue in dispute, that being whether or not Mr Kyriazis’ application for an intervention order revealed a prima facie entitlement to the protection of an intervention order against Mr Horton-Crundall, who was acting in his capacity as a PSO, performing duties at court at the time of the alleged interaction.
75Mr Kyriazis is no stranger to the justice system. He can be fairly described as an experienced litigant in person. He has appeared in all Victorian Courts and at the VCAT unrepresented and made legal submissions in support of various applications. Some of these include, applications for judicial review of the decisions of magistrates,[45] review of a decision of Victoria Police in relation to information it holds,[46] review of decisions of the Director of Public Prosecutions,[47] review of the conduct of a judge of the County Court,[48] and review of a decision of a Judicial Registrar of the Supreme Court of Victoria.[49]
[45]Kyriazis v Victoria Police [2022] VSC 596
[46]Kyriazis v Victoria Police (General) [2011] VCAT 619
[47]Kyriazis v Kos and Ors (summary judgment application) [2020] VSC 54
[48]Harkness v Roberts; Kyriazis v County Court of Victoria (No 2) [2017] VSC 646
[49]Kyriazis v Detective Senior Sergeant Peter Leo Kos [2022] VSC 569
76In this appeal, it was clear that Mr Kyriazis was capable of exercising his legal rights, asking questions, and making submissions in support of his case. He had an excellent understanding of the issues in his case and assertively argued his position.
The nature and complexity of the issues in dispute
77The submissions made by Mr Kyriazis were not complex, he simply disagreed with the proposition that the PSIO Act did not apply, given his argument that Mr Horton-Crundall was not performing his duties in accordance with his position description.
The significance to Mr Kyriazis of an adverse decision
78The issue was important to Mr Kyriazis; however, an adverse decision could have no impact on Mr Kyriazis as Mr Horton-Crundall was no longer working as a PSO and Mr Kyriazis was unlikely to ever come into contact with him again at court.
The competing demands of time and resources of the Magistrates’ Court
79The Magistrates’ Court is a busy court with limited resources. The Magistrate allowed both parties to make submissions and stood the matter down to read Mr Kyriazis’ documents. When the hearing was resumed, the Magistrate again explained the procedure and asked Mr Kyriazis for his submissions.
Grounds of appeal (i) and (ii) – did the Magistrate give clear information about the strike out application and the procedure in Court to Mr Kyriazis?
80On 28 April 2022, during the hearing before the Magistrate, Mr Kyriazis indicated on a number of occasions that he understood he was attending for a strikeout application.[50] The Magistrate explained the effects of the application to Mr Kyriazis. For instance:
[50]MCT1, T2, L15-22, T21, L26-31 and T23, L6-10
HIS HONOUR: “No, what he’s saying is that the court doesn’t even have jurisdiction to hear your hearing because, (a), the conduct - thank you - performed by the respondent was in the course of his official duties and in any event wouldn’t constitute prohibited behaviour by putting someone in fear for their safety et cetera.
MR KYRIAZIS: Yeah, it did. So it was …
HIS HONOUR: All right.
MR KYRIAZIS: … so in actual fact it was prohibited behaviour ‘cause I’ve already discussed it with others and it is prohibited behaviour. …[51]
…
HIS HONOUR: But this is going – this is not a hearing at the moment. This is an application …
MR KYRIAZIS: Yeah.
HIS HONOUR: … by the respondent in relation to your application.
MR KYRIAZIS: I’m glad you clarified that one.
HIS HONOUR: Right.
MR KYRIAZIS: My understanding was that I was being railroaded into a hearing. That’s how I’ve (indistinct words).
HIS HONOUR: Yes. All right. So what they’re – what they’re saying is you’re not entitled to a hearing because there’s no jurisdiction in this court to hear the matter. So whether anybody’s answered your subpoenas or not, it doesn’t really matter today. … .”[52]
[51]MCT1, T40, L26 – T41, L5
[52]MCT1, T44, L7-21
81During the hearing, the Magistrate gave Mr Kyriazis the opportunity to respond to the submissions of the respondent for the strikeout application.[53] An example is shown below:
HIS HONOUR: “Now, you can make a reply and I’ll hear you on it …
…
HIS HONOUR: Well, he’s saying that the duties were performed in the official duties of the respondent. So therefore..
MR KYRIAZIS: No, he doesn’t.
HIS HONOUR: That’s what he’s saying.
MR KYRIAZIS: I know that’s what he’s saying
…
HIS HONOUR: Well, I’m asking you for your reply if you know what he’s saying.”[54]
[53]MCT1, T48
[54]MCT1, T44, L28 – T45, L18
82Mr Kyriazis told the Magistrate that he believed Mr Horton-Crundall was not acting within the scope of his duties as he had singled him out because he did not like him “and then just dragged [him] out”[55] and he had done that many times.[56] An example of this is shown below:
MR KYRIAZIS: “… So – but what I’m saying is according to prohibited behaviour, you can’t just walk over to somebody and just decide to drag ‘em out just ‘cause you feel like it ‘cause you don’t like ‘em. That’s all. So that’s happening to me. Time and time again. … .”[57]
[55]MCT1, T47, L31
[56]Ibid
[57]MCT1, T46, L7-12
83It is clear from the Magistrates’ Court transcript that Mr Kyriazis was invited to make submissions and did do so.[58] The submissions were directed to the issues before the Magistrate.
[58]See for example at MCT1, T40 and T45-47
84During the hearing, the Magistrate stood the matter down for a short time to read Mr Kyriazis’ Further and Better Particulars. When the hearing resumed, the following exchange occurred:
HIS HONOUR: “… What I propose to do is hand down judgment in this matter tomorrow morning …
…
MR KYRIAZIS: Is this ruling in regards to the application by (Counsel for Mr Horton-Crundall) today?---
HIS HONOUR: Yes … The argument is from his point of view his submitting that the court has no jurisdiction under the Act. … To hear a hearing because what is alleged by you in your application and your further and better particulars ah, the conduct doesn’t amount to prohibited behaviour but in any event -and further that it, I suppose this is some time ago, so there is no continuing risk to your safety but further what he says is that on your further and better particulars that applies as well and he relies principally on section 11 of the Act namely that he was performing his official duties at that time. …
…
MR KYRIAZIS: So you’re determining the hearing?---
HIS HONOUR: Yes. No, I’m determining the submission as to whether the court has or has not jurisdiction so if I decide that the court doesn’t have jurisdiction under the Act and the application would be refused. If I am satisfied that the submission is not a valid submission then it’s then a question of the hearing proceeding
MR KYRIAZIS: Okay, so that will happen tomorrow?---
HIS HONOUR: I’m going to rule tomorrow. So if I rule that (Counsel for Mr Horton-Crundall) and his submissions are correct, then there’ll be no hearing, right?
…
HIS HONOUR: If I decide against him, then there will be a hearing. … .”[59]
[59]MCT1, T52, L9 – MCT1, T53, L31
85It is clear from the above references that the Magistrate did give Mr Kyriazis information about the procedure in court, about what a strike out application might be and of his rights to respond to it.
86Therefore, Mr Kyriazis has not made out the substance of the procedural fairness grounds.
Ground of appeal (iii) – “the Magistrate and counsel were having their discussions, and I did not get enough opportunity to say my piece”
87It is correct that during the hearing, the Magistrate engaged in an exchange with counsel for Mr Horton-Crundall.[60] However, it is clear from the transcript that the purpose of the exchange was to enable the Magistrate to understand the submissions being made on behalf of the Mr Horton-Crundall.
[60]MCT1, T7-12
88At one point, the Magistrate took up the argument on behalf of Mr Kyriazis and questioned counsel about the submission being made, in light of Mr Kyriazis’ position.[61]
[61]MCT1, T12, L1-13
89
At another point, the Magistrate explained to Mr Kyriazis about the basis of
Mr Horton-Crundall’s application.[62]
[62]MCT1, T37
90Mr Kyriazis was given every opportunity to make submissions and he did so. Essentially his submissions were:
(a) he had come to oppose the strike out application;[63]
(b) that he wanted to bring his witnesses to give evidence;[64]
(c) that he understood the submission being made on behalf of Mr Horton-Crundall that his application for an intervention order did not constitute grounds of prohibited behaviour;[65]
(d) that his position was that Mr Horton-Crundall had behaved outside the scope of his duties as a PSO, walked up to him and dragged him out because he felt like it;[66]
(e) that he understood the Magistrate was going to strike out his application and he wanted the matter stood down so he could go to the Prothonotary;[67] and
(f) that during the interactions, Mr Horton-Crundall, was engaged in court duties, in his uniform in his capacity as a Protective Services Officer.[68]
[63]MCT1, T23
[64]MCT1, T35
[65]MCT1, T40
[66]MCT1, T46-47
[67]MCT1, T42-44
[68]MCT1, T51
91The Magistrate then explained to Mr Kyriazis that he would consider all of the submissions and deliver a ruling. If the application by Mr Horton-Crundall was successful, then he would rule that the PSIO Act does not apply, and there would be no hearing. If it was not successful, Mr Kyriazis would have his hearing.[69] The transcript reveals Mr Kyriazis understood what was to happen and what his rights were, including a right of appeal to this Court.
[69]MCT1, T54-55
92Taking the contents of the transcript as a whole, there was nothing improper in what the Magistrate did. Mr Kyriazis made his submissions and they were all taken into account. The Magistrate patiently explained the process to Mr Kyriazis and read and took into account all of the material Mr Kyriazis had filed with the Court, before delivering his ruling.
93Therefore, Mr Kyriazis has not made out the natural justice ground of appeal.
Grounds of appeal (iv) and (v) – “the Magistrate explained section 11 in a way I did not understand and section 11 did not apply as Mr Horton-Crundall was acting outside the scope of his duties”
94These grounds are not founded on the same basis. Ground (iv) is a procedural fairness ground and ground (v) is a legal error ground. Nevertheless, they both relate to s11, and it is convenient to deal with them together as Mr Kyriazis’ understanding of s11 is the feature which is common to both.
95Section 11 of the PSIO Act (relevantly) provides that:
“Act not to apply to certain conduct
This Act does not apply to conduct engaged in by a person performing official duties for the following purposes that, but for this section, would constitute grounds for making an order under this Act––
(a) …
(b) the administration of any Act;
… .”
96Section 2 of the CSA provides that a PSO is an authorized officer in relation to any court.
97Section 3 of the CSA confers powers to authorized officers to do various things including:
“Powers of authorized officer
(1) Subject to any limitations or restrictions provided by the rules an authorized officer may demand from a person who is on court premises that person’s name and address, the person’s reason for being on the premises and evidence of the person’s identity.
…
(2A) Subject to any limitations or restrictions provided by the rules, an authorized officer––
(a) may give to a person who wishes to enter court premises, or is on the court premises, a reasonable direction to do or not do a thing, for the purpose of maintaining or restoring the security, good order or management of the court premises; and
…
(d) may, if the authorized officer reasonably suspects that a recording, transmission or publication made or being made of a proceeding is not permitted by or under this Act or any other law, direct a person to do one or more than one of the following–
(i) stop making the recording, transmission or publication;
(ii) permit an authorized officer to view the recording, transmission or publication on a device;
(iii) delete the recording.”
98For a number of reasons, I do not accept that Mr Kyriazis did not understand the application of s11 of the PSIO Act.
99First, Mr Kyriazis has previously participated in proceedings in which s11 of the PSIO Act was considered. As mentioned above, on 16 October 2019, his Honour Judge Pillay handed down a decision in an appeal instituted by Mr Kyriazis in which PSO Mr Horton-Crundall, Leading Senior Constable Shaun Gunn and Detective Sargent Peter Kos were respondents:[70]
(a) on 10 July 2019, Mr Kyriazis had made application for Personal Safety Intervention Orders against those respondents alleging that he had been subject to “prohibited behaviour” by each of them. On 31 July 2019, when the matters came on for hearing, they were each struck out by the Magistrate; and
(b) Mr Kyriazis appealed against that decision to the County Court. Judge Pillay struck out his appeal. Judge Pillay found that s11 applied in the appeal and found that Mr Horton-Crundall had been acting in accordance with his official duties in determining whether or not a recording had taken place within the court room.[71]
[70]Kyriazis v Kos; Kyriazis v Gunn; Kyriazis v Horton-Crundle [2024] VCC 232
[71]Ibid at paragraph [13]
100Mr Kyriazis must be taken to have read the decision of Judge Pillay. During the hearing of this appeal, Mr Kyriazis quoted from the decision. Judge Pillay referred to conduct alleged by Mr Kyriazis as being potentially “impolite and rude” but not constituting “prohibited behaviour” within the meaning of the PSIO Act. Mr Kyriazis repeated this phrase in this appeal[72]
[72]CCT2, T68, L21-23
101Second, on 16 April 2021, ten days before his appearance before the Magistrate, Mr Kyriazis appeared in the Supreme Court before Gorton J seeking judicial review of an alleged denial of procedural fairness in a refusal of the Magistrates’ Court to grant an interim order against Mr Horton-Crundall. In his judgment, Gorton J commented that any conduct of Mr Horton-Crundall would need to be sufficiently disconnected from his work duties in order to avoid the operation of s11 of the PSIO Act.[73]
[73]Kyriazis v Horton-Crundall [2021] VSC 196 at paragraph [30]
102I consider Mr Kyriazis was no stranger to the provisions and would have known about the existence and significance of s11 of the PSIO Act when he lodged his second application for an intervention order against Mr Horton-Crundall.
103
If I am wrong about that, I consider Mr Kyriazis received sufficient information from the Magistrate when he read out the provision and explained its operation to
Mr Kyriazis.[74]
[74]MCT1, T7-8
104Mr Kyriazis demonstrated his understanding by submitting to the Magistrate that Mr Horton-Crundall was not acting according to his job description and his behaviour was not the right behaviour (according to that job description).[75]
[75]MCT1, T40-41
105The totality of the transcript demonstrates that Mr Kyriazis did understand the argument, he just did not agree with it. No error by the Magistrate has been demonstrated. There was no duty on the Magistrate to accept Mr Kyriazis’ arguments.
Did the Magistrate apply the wrong test?
106The transcript reveals that on 5 December 2021, Mr Kyriazis had been provided with notice of the strike out application and an accompanying affidavit[76] and had come to court to answer the application.[77]
[76]MCT1, T25 and T46-47
[77]MCT1, T2, L15-22
107
The Magistrate was being asked to consider whether the Magistrates’ Court had jurisdiction to hear an application for a personal safety intervention order by
Mr Kyriazis against a person who was a PSO performing his duties at the time the alleged prohibited conduct is said to have occurred.
108
The material filed by Mr Kyriazis with the Magistrates’ Court, being the Further and Better Particulars[78] and Statement of Vasilios Kyriazis[79] clearly supported a finding that all interactions between Mr Kyriazis and Mr Horton-Crundall were in the context of Mr Horton-Crundall’s official duties as a PSO. During the hearing,
Mr Kyriazis told the Magistrate that Mr Horton-Crundall was working in his capacity as a PSO and was in his uniform doing court duties when he interacted with him.[80]
[78]CB 4-6
[79]CB 7-8
[80]MCT1, T51
109Mr Kyriazis told the Magistrate that Mr Horton-Crundall was engaged in “prohibited behaviour” within the meaning of the PSIO Act, because:
“… I’ve already discussed it with others and it is prohibited behaviour … because according to the job description Your Honour, that’s not the right behaviour. … .”[81]
[81]MCT1, T41, L3-8
110The Magistrate found that Mr Kyriazis had agreed that Mr Horton-Crundall was working as a PSO in relation to all of the incidents alleged[82] and that Mr Horton-Crundall was “clearly performing his official duties at the time of all of the incidents”.[83]
[82]MCT2, T64-65
[83]MCT2, T65, L11-15
111In Lazarides v Di Lorenzo & Ors,[84] Cavanough J considered s11 of the PSIO Act. In that case, a County Court judge struck out an appeal from a refusal by the Magistrates’ Court to make personal safety intervention orders protecting Mr Lazarides from various officers of a municipal council and the RSPCA. His Honour said:
“… Mr Lazarides’ crusade pays no attention to s 11 of the PSIO Act. Of course, he can not expect to be protected or immunised from the enforcement or administration of the law by public officials. … .”[85]
[84][2019] VSC 693
[85]Ibid at paragraph [73]
112The terms of s11 of the PSIO Act required the Magistrate to consider whether the alleged conduct of Mr Horton-Crundall was engaged in by him whilst he was performing official duties for the purpose of the administration of any Act. If he so found, Mr Kyriazis could not expect to be protected and immunised from the enforcement of administration of the CSA by officers charged with administering it on court premises.
113I find the Magistrate did not apply the wrong test and was correct to summarily dismiss Mr Kyriazis’ application.
Grounds of appeal (vi) and (vii) – Mr Kyriazis is a targeted individual and
Mr Horton-Crundall was instructed by someone to act in a particular way
114Mr Kyriazis clarified that what he meant by this was that he was targeted and singled out by Mr Horton-Crundall in an unfair way.
115I understand what was being alleged was malice on the part of Mr Horton-Crundall or possibly someone who instructed him to act as he did.
116Aside from Mr Kyriazis making that assertion, there was no evidence of malice or improper motivation on the part of Mr Horton-Crundall.
117The CSA creates an offence for a person to make a recording of a court proceeding without prior written authorisation. It was not malice for Mr Horton-Crundall to be trying to determine whether an offence might be committed by Mr Kyriazis on court premises, he was doing his job.
Ground of appeal (viii) – The Magistrate should have known what the relevant law was and told Mr Kyriazis what he should have done
118In Rajski v Scitec Corporation Pty Ltd,[86] the New South Wales Supreme Court of Appeal said:
“… the advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which he or she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. … .”
(Samuels JA)
“… Where a party appears in person, he will ordinarily be at a disadvantage. That does not mean that the court will give to the other party less than he is entitled to. Nor will it confer upon the party in person advantages which, if he were represented, he would not have. But the court will, I think, be careful to examine what is put to it by a party in person to ensure that he has not, because of the lack of legal skill, failed to claim rights or to put forward arguments which otherwise he might have done.”
(Mahoney JA)
[86][1986] NSWCA 1, cited with approval by Bell J in Tomasevic v Travaglini (supra) at paragraphs [111]-[112]
119In Minogue v Human Rights and Equal Opportunity Commission, the Full Court of the Federal Court said:
“A trial Judge often faces something of a dilemma. While he or she may be bound to provide some advice and assistance to an unrepresented litigant, the authorities make it clear that the Judge should not intervene to such an extent that he or she cannot maintain a position of neutrality in the litigation. … .”[87]
[87](1999) 84 FCR 438 at 446, cited with approval by Bell J in Tomasevic v Travaglini (supra) at paragraphs [113]-[114]
120As I understood the submission, if the Magistrate considered s11 deprived the Court of jurisdiction, he then should have told Mr Kyriazis what other options he had at law to achieve what he was trying to achieve.
121So understood, the submission invites the Court to find that the Magistrate should have assumed the role of legal advisor to Mr Kyriazis.
122The submission is misconceived. The Magistrate could not be an impartial decisionmaker and legal advisor to one of the parties at the same time.
123As Bell J said, in Tomasevic:[88]
“… There is no doubt that, in either a criminal or civil case, the judge cannot become the advocate of a self-represented litigant, and must maintain the reality and appearance of judicial neutrality. … .”
[88] Supra at paragraph [129]
124Accordingly, this ground must fail as it invites the Court to find error on the basis that the Magistrate did not give Mr Kyriazis legal advice as to how he could achieve what he set out to do.
Refusal by the Magistrate of Mr Kyriazis’ application – no evidence alleged conduct will occur again
125Section 61 of the PSIO Act provides that the Court may make a final order if satisfied that the respondent has committed “prohibited behaviour” against the affected person and is likely to continue to do so or do so again.
126At the commencement of the hearing before the Magistrate, Mr Kyriazis told the Court he had received information that Mr Horton-Crundall is no longer employed as a PSO.[89]
[89]MCT1, T1, L28-34
127The Magistrate found that the material before him did not establish a basis that any order was necessary for the safety of Mr Kyriazis, that the last incident happened some two years prior to the hearing and that there was no evidence that the conduct was likely to occur again (even if s11 did not apply).
128Mr Kyriazis had not alleged any likelihood of ongoing conduct in his application for an intervention order, nor in his Further and Better Particulars. Therefore, taking his application at its highest, even without the operation of s11, Mr Kyriazis could not hope to obtain an intervention order.
129
By virtue of the operation of s61, the Magistrate was correct to also refuse
Mr Kyriazis’ application for intervention order.
Fresh evidence
130
The fresh evidence received by the Court without objection on behalf of
Mr Horton-Crundall was an audio recording made by Mr Kyriazis on 15 November 2019 at 10.27am at the Supreme Court of Victoria. It was played in Court. It was approximately 30 minutes in length, mostly featuring Mr Kyriazis’ voice speaking in a loud and at times angry tone to a number of people whose voices can also be heard at times, albeit more softly or at a distance from the recorder.
131I have taken into account the whole of the recording but shall not transcribe all of in this Ruling. In summary, the recording contained the following:
(a) Mr Kyriazis demanding to know “why am I waiting and why am I being removed” and saying to someone “you come here and talk to me and explain to me what’s going on”;
(b) A male voice can be heard saying “the good order and management of the court … you are in the court building and the same applies”;
(c) Mr Kyriazis saying that he was going to see a case in the Supreme Court;
(d) A male person saying to Mr Kyriazis “you are in the court building, you’ve been given a direction, you have failed to comply with it, you must leave … you can’t take your recorder in to court … we are talking to George about his recorder, he can’t take it in there, you’ve come in and interrupted”;
(e) Mr Kyriazis arguing with the male voices and explaining that he needs to go into the court and demanding in a loud and angry voice to “get security out here” and “I want to know what safety and security reasons issues are”;
(f) Mr Kyriazis also saying “I’ll be talking to their boss and they better put in in writing”;
(g) Mr Kyriazis saying “I’ve got Horton-Crundall here, he’s telling me he is going to revoke my license (to be on court premises) … I’ll be discussing it with the appropriate person, by the way, that last episode ain’t over, you’ll be answering for it in a court of law. … I’m going to make you charge me, how’s that?”;
(h) on a number of occasions, Mr Kyriazis said “get the police down here” in an angry tone. He also said:
“You try to stop me again, you see what happens”
and
“I’m going to make you charge me … I’ve disrupted the good order and condition of the court room is that right … we will go and make an application across the road … the cop’s gone on medical leave, he said ‘you’re the puppet master but the judge said it was just impolite and rude. … it won’t be happening again. I’ll tell you now, I’ll put your job on the line. … I don’t know how you got this job but my endeavours will be to ensure you don’t have this job.”
(i) Mr Kyriazis said “the PSOs engaged George the minute he walked in and started telling him not to record and to take his recorder off him. …”; and
(j)
During the recording, two police – one male and one female – spoke to Mr Kyriazis and informed him that they had been asked to move him on. He spoke to them in an angry tone and complained that he had been asked to leave the Court and he wanted to know why. Police asked
Mr Kyriazis to move on and he apparently eventually left the area.
132The recording shows that Mr Kyriazis was extremely upset that he had been asked to leave the area. It was not clear from the recording whether the PSOs ever detected a recording device in Mr Kyriazis’ possession or whether they only detected one in the possession of “George” and Mr Kyriazis intervened on behalf of “George” when they sought to speak to him about it.
133Counsel on behalf of Mr Horton-Crundall submitted that the recording supported his contention that Mr Horton-Crundall was acting in pursuit of his official duties under the CSA.
134In particular, Counsel relied on[90] the following provisions of the CSA:
(a) Section 3(2A), which empowers an authorized officer[91] to give a reasonable direction for the purposes of maintaining or restoring the security, good order or management of court premises to any person who wishes to enter court premises;
(b) Section 3(2A), which provides that an authorised officer may, if they reasonably suspect that a recording is made or being made of a proceeding and is not permitted under the CSA, give various directions and take steps with respect to that recording;
(c) Section 3(5), which provides that an authorized officer may prohibit a person from entering the court premises or if the person is on the court premises, remove the person from the court premises; and
(d) Section 3(9), which provides that an authorized officer may refuse a person entry to the court premises or remove a person from the court premises if they believe on reasonable grounds that the person is likely to affect adversely the security, good order or management of the court premises.
[90]CCT2, T53-55
[91]Section 2 of the CSA defines “authorized officer” as being “in relation to any court, means a police officer, police custody officer, protective services officer or a person appointed as an authorized officer under section 2A”
135Mr Kyriazis said (in effect) that Mr Horton-Crundall was aware that he (Mr Kyriazis) records and he should have said so:
“… [T]hey know I carry a recorder and I’ve got my judgment (referring to the order made of Justice Bell) he can’t just refuse me without any valid legal instrument.”[92]
[92]CCT2, T72, L6-9
136Mr Kyriazis said that he had not been informed why he was being removed and in effect Mr Horton-Crundall was thereby acting outside his powers.
137I reject Mr Kyriazis’ submissions.
138There was nothing on the recording which supports Mr Kyriazis’ contention that on 15 November 2019, Mr Horton-Crundall was acting outside the scope of his duties as a PSO. To the contrary, the recording shows that Mr Kyriazis had been informed he was interfering with the good order and management of the Court and been given a direction to leave. The recording also confirmed that Mr Kyriazis was considered to have intervened while PSOs were telling “George” that he could not take his recorder into the court.
139All of these are matters in respect of which the PSOs were authorised and empowered under the CSA and if Mr Horton-Crundall was one of the officers whose voice can be heard giving Mr Kyriazis directions under the Act, then he was doing his job and could not therefore be considered subject to an intervention order for the protection of Mr Kyriazis.
Disposition
140I find the jurisdiction of the Court was not enlivened as there was no error demonstrated on the part of the Magistrate.
141I confirm the order of the Magistrate.
142Further, Mr Kyriazis has not demonstrated any prima facie entitlement to an intervention order against Mr Horton-Crundall, a PSO.
143Mr Kyriazis’ appeal is therefore dismissed.
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