Mokbel v Director of Public Prosecutions (Suppression Costs)

[2024] VSC 795

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2022 0117

ANTONIOS SAJIH MOKBEL	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGE:	BEACH JA
WHERE HELD:	Melbourne
DATE OF HEARING:	18 December 2024
DATE OF JUDGMENT:	18 December 2024
CASE MAY BE CITED AS:	Mokbel v DPP (Suppression Costs)
MEDIUM NEUTRAL CITATION:	[2024] VSC 795

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PRACTICE AND PROCEDURE – Costs – Whether unsuccessful applicants for proceeding suppression order should pay costs – Whether Court has power to order costs – Whether costs should follow the event – No order as to costs – Madafferi v The Queen (No 2) (2021) 63 VR 143, referred to; Channel Nine SA v Police (No 2)  (2014) SASR 87, applied – CriminalProcedure Act 2009, s 409 – Open Courts Act 2013, s 18(1)(a).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms J Condon KC with Dr JR Murphy	Sarah Tricarico Lawyers Pty Ltd
For the Respondent	Mr S Thomas	Ms A Hogan, Solicitor for Public Prosecutions
For Police Member 1 and Police Member 2	Ms RL Enbom KC	Corrs Chambers Westgarth
For Nine Network Pty Ltd, Seven Network (Operations) Limited and Herald and Weekly Times Pty Ltd	Mr MJ Hoyne	Thomson Geer

HIS HONOUR:

1. This morning, I made orders refusing an application made by Police Member 1 and Police Member 2 for a proceeding suppression order.  The background to that application is contained in this Court’s decision of Mokbel v DPP (Suppression).[1]  These reasons should be read in conjunction with the Suppression Reasons.

   [1][2024] VSC 784 (‘Suppression Reasons’).

1. As a result of the refusal of the application by PM1 and PM2 for a proceeding suppression order, the media parties have applied for their costs of that application.  They contend that the Court has power to make a costs order and that they should have their costs from the police members because costs should follow the event.

1. The first impediment to the making of a costs order in favour of the media parties is s 409 of the Criminal Procedure Act 2009.  That section provides:

409     No costs on appeal to Court of Appeal or on new trial

No costs are to be allowed to a party to—

(a)an appeal under Part 6.3 or 6.4; or

(b)a new trial; or

(c)a proceeding preliminary or incidental to an appeal or new trial.

1. In Madafferi v The Queen (No 2),[2] the Court of Appeal had to consider whether it had power to award costs to a party to an appeal under Part 6.3 of the Criminal Procedure Act in relation to an interlocutory hearing in which the Chief Commissioner of Police had unsuccessfully asserted a claim for public interest immunity. The Court concluded that it had no power to order costs in favour of the applicant (Madafferi), and that his application to be paid his costs of the public interest immunity application had to be dismissed.[3]

   [2](2021) 63 VR 143 (Emerton, Weinberg and Osborne JJA) (‘Madafferi’).

   [3]Madafferi [2021] VSCA 4, 143, 145–6 [11]–[12].

1. Applying the reasoning of the Court of Appeal in Madafferi, this Court has no power to award costs to the applicant or the respondent in respect of the reference determination — the reference determination being ‘a proceeding preliminary or incidental to an appeal [under Part 6.4]’.

1. The issue of whether the Court has power to award costs in favour of the media parties is potentially more complicated. The media parties are not parties to an appeal under Part 6.4 of the Criminal Procedure Act. On one view, however, they are parties to the proceeding suppression application brought by the police members; and thus parties to a proceeding (the proceeding suppression application) incidental to an appeal under Part 6.4 of the Criminal Procedure Act.

1. For present purposes, it is not necessary for me to resolve the question of whether s 409 of the Criminal Procedure Act prevents the media parties from obtaining an award of costs against the police members.  This is because, in my view, in the circumstances of this case, costs should not follow the event.  Specifically, for the reasons given by the Full Court of the Supreme Court of South Australia in Channel Nine SA Pty Ltd v Police (No 2),[4] there is no reason to adopt as a starting point the principle applied in private civil actions that costs follow the event.[5]

   [4][2014] SASCFC 119; (2014) 121 SASR 87, 99–101 [40]–[51] (Kourakis CJ, Blue and Parker JJ) (‘Channel Nine SA’).

   [5]Ibid 101 [51].

1. In particular, as the Full Court said:

The rationale for the general rule that the starting point in civil proceedings is that costs follow the event does not apply to an application for a suppression order. If a non-party to a proceeding applies for a suppression order, the non-party is in a very different position to a plaintiff who chooses to initiate a proceeding and maintains a large measure of control over its prosecution. A non-party is caught up in a proceeding between the plaintiff and defendant that is not of his or her making. The non-party is not responsible for the institution or existence of the proceeding; nor can it be said that the non-party merely by applying for a suppression order has caused a person who opposes a suppression order to incur costs. The incurring of those costs is a function of the administration of justice in the public interest. A person who opposes a suppression order is not defending a private interest or resisting a personal right asserted against him or her in the sense of a defendant in an ordinary private action. Such a person incurs costs because he or she chooses to participate in the determination of what is in the public interest rather than being compelled to defend a claim against him or her.[6]

[6]Ibid 100 [47].

1. While the Full Court accepted that it ‘might be appropriate to make a costs order against a person who applies for a suppression order on manifestly untenable grounds’,[7] the application brought in this proceeding by the police members, while weak, was not manifestly untenable.  Indeed, it might be said that the application for a proceeding suppression order was, at least to some extent, invited or provoked by the way in which the hearing of the reference determination unfolded.[8]

   [7]Ibid 101 [51].

   [8]See Suppression Reasons [24]-[25], [31] and [35].

1. In my view, it was not unreasonable for the police members to make the proceeding suppression application and, in the circumstances, adopting the reasoning in Channel Nine SA, there should be no award of costs against the police members.

1. For these reasons, there will be no order as to costs of the proceeding suppression application.

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