Stylianou v Director of Public Prosecutions (No 2)

HER HONOUR: Constantinos Stylianou faced three charges of having sexual intercourse with a person under the age of 10 years contrary to s 66A of the Crimes Act 1900 (NSW). At the committal proceedings in the Local Court, his solicitor sought directions pursuant to ss 91 and 93 of the Criminal Procedure Act 1986 (NSW) for the attendance of a number of witnesses including the complainant. The Magistrate made a limited direction in respect of the complainant’s sister but otherwise refused the application.

Mr Stylianou sought judicial review of that decision on the grounds of jurisdictional error. I dismissed that application: Stylianou v Director of Public Prosecutions [2017] NSWSC 766.

At the time my judgment was published, the legal representative for the DPP sought an opportunity to confirm instructions as to whether the DPP (having been successful in the proceedings) would seek costs. Leave was granted to the parties to file written submissions in support of any such application.

Submissions were filed in due course seeking an order that the plaintiff pay the DPP’s costs on the basis of the general rule that costs follow the event. The general rule is reflected in r 42.1 of the Uniform Civil Procedure Rules 2005 (NSW), which provides:

The plaintiff’s solicitor submitted that, in the circumstances of this case, it would be appropriate to depart from the general rule and that the fair result would be for each party to bear his own costs. He submitted that the application was concerned with “the importance of committal proceedings and their function within the context of fair trial principles.”

The written submissions provided by both parties were short. Neither party cited any authority dealing with an application of this kind. That is not to criticise either party but only to record the context in which this decision is made.

Unguided by authority, I am inclined to accept the plaintiff’s submission. The proceedings, although governed by civil procedure, are intimately connected with the criminal proceedings against the plaintiff. In those proceedings, the plaintiff is charged with serious indictable offences with potentially serious consequences. In such circumstances, the Court should be astute to ensure that the risk of exposure to costs does not serve to discourage accused persons from invoking this court’s supervisory jurisdiction in respect of an issue going to the fairness of the criminal process.

That is not to suggest the existence of any general rule. Each case must of course be determined according to its own circumstances. The position might be different if it were apprehended that an application was without merit or was brought for a purpose extraneous to the proper defence of the criminal charges. However, in the absence of any submission by the DPP that this is such a case, I am not persuaded that I should order the plaintiff to pay the DPP’s costs.

For those reasons, I order that each party bear his own costs.