COSTS - Whether s 24(1) of the Supreme Court Act 1986 ('SCA') confers a statutory power to award costs against the Chief Commissioner of Police ('CCP') in relation to an unsuccessful public interest immunity ('PII') claim by the CCP - Whether a PII claim in the context of a prosecution brought by the Director of Public Prosecutions is a criminal proceeding for the purpose of s 24(2) of the SCA - Whether the practice of costs not being awarded in criminal proceedings applies to a PII claim - Chief Commissioner of Police v Crupi

1. At approximately 1am on 15 March 2016, Joseph Acquaro was gunned down near his restaurant, the Gelobar, in East Brunswick.
2. On 9 November 2018, Vincenzo Crupi was charged with the murder of Mr Acquaro and remanded in custody.
3. The proceeding against Mr Crupi was ultimately discontinued by the Director of Public Prosecutions (DPP) on 6 May 2025.
4. This is an application by Mr Crupi for costs against the Chief Commissioner of Police (CCP) , mostly[1] in relation to an ultimately unsuccessful public interest immunity (PII) claim by the CCP.
5. I reject Mr Crupi's application. For the reasons given below, I find that I do not have the power to award costs.

1. The history of the criminal proceeding against Mr Crupi for the murder of Joseph Acquaro is a convoluted one with many hearings along the way. Without mentioning every hearing, it is necessary to provide a reasonably detailed chronology of the proceeding to give context to the five hearings for which Mr Crupi seeks costs. Those five hearings are highlighted in bold in the chronology below.
2. In November 2019, Mr Crupi was committed to stand trial for the murder of Mr Acquaro.
3. Due to COVID-19, trial commencement dates of 1 June 2020 and 26 October 2020 were vacated.
4. On 18 March 2021, Mr Crupi was granted bail by this court.
5. Due to ongoing issues with non-disclosure by the CCP, a trial commencement date of 11 October 2021 was also vacated.
6. On 6 June 2022, approximately five weeks before the trial was listed to commence, the CCP first notified the Court of its intention to claim PII in respect of information which it considered was relevant to Mr Crupi's defence.
7. The trial commencement date of 12 July 2022 was vacated because of the CCP's PII claim.
8. On 16 September 2022, without objection from the CCP, I appointed amici curiae to act as contradictors at the hearing of the CCP's PII claim and ordered the CCP to provide the amici with the confidential information prior to the hearing of the matter.
9. On 2 November 2022, over objection from the Chief Examiner and the CCP, I indicated that I also intended to appoint amici to act as contradictors in relation to restricted material obtained by the Chief Examiner and provided to the court, which the Chief Examiner and the CCP submitted should not be released to Mr Crupi.[2]
10. On 16 November 2022, after receiving both written and oral submissions from the CCP and amici, I rejected the CCP's PII claim, giving brief ex tempore reasons for doing so, essentially adopting the submissions of the amici and concluding that release of the confidential information was likely to be of substantial assistance to Mr Crupi in the conduct of his defence.
11. On 15 December 2022, I rejected an application by the CCP under s 302 of the Criminal Procedure Act 2009 ('CPA') that I reserve certain purported questions of law for the Court of Appeal regarding my rejection of the CCP's PII claim.
12. On 13 February 2023, the Court of Appeal dismissed an application by the CCP under s 304 of the CPA[3] for an order that I reserve their purported questions of law. Costs were ordered against the CCP in favour of Mr Crupi pursuant to s 304 (2) of the CPA.
13. On 16 February 2023, there was a mention before me. Amongst other things, the CCP flagged an application under s 302 of the CPA for me to reserve different questions of law for the Court of Appeal (as had been suggested by the Court of Appeal[4]) and requested that I do so 'on the papers'. I was persuaded by Mr Crupi that there should be an oral hearing. On 16 February 2023 I also vacated the trial commencement date of 6 March 2023 and adjourned the trial to a date to be fixed.
14. On 9 March 2023, I reserved two purported questions of law for the Court of Appeal.
15. On 13 October 2023, the Court of Appeal ruled that the two reserved questions were not questions of law for the purposes of s 302 of the CPA and so it did not have authority to answer them.
16. On 31 October 2023, the CCP filed an application for special leave to the High Court.
17. On 11 September 2024, special leave was granted and the CCP's appeal was allowed, on the ground that I had failed to provide adequate reasons for my rejection of the CCP's PII claim.[5] My orders of the 16 November 2022 were set aside and the matter was remitted to this court for determination according to law.
18. On 30 September, 2024, there was a mention before me. The purpose of that mention was to fix a date for the re-hearing of the PII claim and to set a timetable for the filing of written submissions and other materials. Counsel for Mr Crupi indicated that they intended to file written submissions to the effect that if I was minded to uphold the CCP's PII claim, I should permanently stay the proceedings against Mr Crupi.
19. On 11 November 2024, Mr Crupi submitted that I should reject the CCP's PII claim but, in the alternative, if I upheld the claim, I should order a permanent stay of the criminal proceeding against him. Mr Crupi also submitted that I should reject the CCP's application to be made a party to the criminal proceeding.[6] On 11 November 2025, I also heard submissions from the amici and the CCP, in the absence of the prosecution and defence, regarding the PII claim.
20. On 13 February 2025, I rejected the CCP's PII claim and ordered disclosure of the confidential information which was the subject of the claim. I also granted a stay of my order - which stay was extended several times - to facilitate consideration by the DPP as to whether to discontinue the criminal proceeding against Mr Crupi.
21. On 6 May 2025, the DPP formally discontinued the criminal proceedings against Mr Crupi.
22. On 13 August 2025, there was a hearing at which Mr Crupi and the CCP made submissions as to whether I should make an order for costs against the CCP in favour of Mr Crupi in respect of the hearings on 2 November 2022, 16 February 2023, 30 September 2024, 11 November 2024 and 13 August 2025.

1. Mr Crupi submitted, first, that I had power to award costs against the CCP and, second, that I should exercise my discretion in his favour.

1. In relation to the first issue (power), Mr Crupi relied on s 24(1) of the Supreme Court Act 1986 ('SCA'), which provides as follows:
   1. Costs to be in the discretion of Court

(1) Unless otherwise expressly provided by this or any other Act or by the Rules, the costs of and incidental to all matters in the Court, including the administration of estates and trusts, is in the discretion of the Court and the Court has full power to determine by whom and to what extent the costs are to be paid.

(2) Nothing in this section alters the practice in any criminal proceeding.

1. Mr Crupi submitted that, although it is the practice not to award costs in criminal proceedings for or against the Crown, the proceeding in relation to the PII claim was not a criminal proceeding. Rather, it was a 'separate ancillary matter' under the Evidence Act 2008.[7] In the alternative, Mr Crupi submitted that even if the PII claim was a criminal proceeding, the CCP was not the Crown: the DPP is the Crown in a criminal trial on indictment.

1. In relation to the second issue (discretion), Mr Crupi submitted that because of the stance adopted by the CCP, there had been extraordinary delay in the finalisation of the proceeding against him and a substantial drain on Mr Crupi's financial resources. Regarding the delay, Mr Crupi submitted that the CCP could have made submissions to the DPP in 2022 regarding discontinuance of the proceeding against him. Regarding the financial drain, Mr Crupi submitted that although he was limited in the submissions he could make regarding the PII claim - because, unlike the amici he was not privy to the confidential information - he was nevertheless justified in having legal representation at the hearing the subject of the costs claim to try and advance his interests. Further, awarding costs in his favour was not about punishing the CCP but about compensating him.

1. The CCP submitted that the proceedings in relation to the PII claim were criminal proceedings. The CCP characterised the determination of a PII claim as an 'interlocutory decision dealing with [the] admissibility of evidence in the criminal proceeding'.[8]
2. The CCP submitted that there is a well-established practice not to award costs in criminal proceedings. Thus s 24(2) of the Supreme Court Act 1986 was engaged, meaning there was no power under s 24(1) of that Act to award costs.
3. The CCP submitted that there was no other statutory provision which potentially conferred a power to award costs in a PII claim and highlighted that Mr Crupi had not cited any authority for the proposition that the court has the power to award costs.
4. The CCP submitted that a PII claim under s 130 of the Evidence Act 2008 concerns a 'matter of state' and consequently, when making such a claim, the CCP is asserting 'the state or Crown interest - not an interest that attaches to his statutory position'.[9] In other words, the CCP is to be regarded as the Crown for the purposes of a PII claim. The CCP noted that, in other states, it is the DPP who makes the claim and that it should make no difference whether it is the DPP or the CCP who makes the claim.
5. Alternatively, the CCP submitted, relying on R v Wright, Danci and Currie,[10] that even if the CCP is not regarded as the Crown, the rule against the award of costs in criminal proceedings extended beyond cases which involved the Crown as a party.

1. The CCP submitted, in the alternative, that, if there is a power to award costs, such an order should not be made as he had acted appropriately and diligently in pursuing the claim in this Court, the Court of Appeal and the High Court, and had been successful in the High Court. There were grave matters at stake - the safety of a human source (and their family) and the potential 'chilling effect' on informers from the disclosure of the confidential information.
2. The CCP submitted that in circumstances where the court had appointed amici to act as contradictors, the cost of which was borne by the CCP, Mr Crupi's interests had been sufficiently safeguarded and he had unnecessarily incurred costs by having his own legal representation at the five hearings which are the subject of the costs application.
3. The CCP submitted that, understandably, the DPP's stance was that the PII proceedings should play out before the DPP made any determination as to whether to discontinue the proceeding against Mr Crupi.

1. I turn now to my analysis.
2. With regard to the meaning of the phrase 'criminal proceeding' in s 24(2) of the SCA, Phillips JA, with whom Charles and Buchanan JJA agreed, said the following in Perkins v County Court of Victoria:[11]

... in interpreting what is meant by 'any criminal proceeding' in s 24(2) it seems appropriate still to adopt the meaning attributed to that expression in the past, and in consequence that expression will encompass any proceeding which itself is criminal or, if not itself criminal, is an adjunct to an underlying proceeding which is 'criminal' in the sense disclosed in the cases, even though those cases were decided on the legislation in an earlier form and mainly over the right of appeal.[12]

1. The PII claim by the CCP was, at the very least, an adjunct to an underlying proceeding which was criminal. Mr Crupi's interpretation of the phrase 'criminal proceeding' strikes me as unduly narrow and inconsistent with the interpretation articulated by Phillips JA.
2. Whilst it is a small point, it should not be forgotten that, when a PII claim is made by the CCP, even though the accused and the prosecution are limited in the submissions they can make - because they are usually not privy to the confidential information - they nevertheless have a right to make submissions regarding the legal principles that should inform the court's determination of the claim. I consider that this feature lends support for my finding that a PII claim is a criminal proceeding.
3. In my view, it is immaterial whether or not the CCP is regarded as the Crown when it makes a PII claim as an adjunct to an underlying criminal proceeding. The practice of costs not being awarded in a criminal proceedings does not turn upon the Crown being the entity by whom or against whom a cost order is sought. Brooking J, with whom Fullagar and Tadgell JJ agreed, said the following in R v Wright, Danci and Currie:[13]

It is often said that in criminal prosecutions on indictment or presentment no order for costs may be made against the Crown because of the rule (sometimes described as a general rule) that the Crown neither pays nor receives costs ... But, with the greatest respect, it appears to me that the reason why costs cannot be awarded against the Crown on a prosecution for an indictable offence is not the special position of the Crown. It is the simpler and more fundamental reason that, in the absence of statute, there is no power to award costs... Costs were, as regards the courts of common law, entirely the creature of statute, and this is so also in relation to criminal proceedings.[14]

1. In conclusion, the applicant has failed to identify a statutory power for me to award costs against the CCP in relation to his PII claim. That claim was a criminal proceeding. There is a well-established practice not to award costs in criminal proceedings. Section 24(2) of the SCA is engaged. I have no power to award costs in this matter.

[1] I say 'mostly' because the hearing on 2 November 2022 - one of the five hearings for which Mr Crupi seeks costs - was concerned with restricted information obtained by the Chief Examiner, not the confidential information the subject of the PII claim.

1. [2] R v Crupi (Ruling No 4) [2022] VSC 676. On 4 November 2022, I formally appointed the amici in relation to the restricted material and ordered the CCP to provide the amici with the restricted material.

(1) If the Supreme Court or the County Court refuses an application under section 302 or 302A to reserve a question of law, the applicant may apply to the Court of Appeal for an order calling on -

(b) the respondent - to show cause why the question of law should not be reserved for determination by the Court of Appeal.

(2) On an application under subsection (1), the Court of Appeal may order that the question of law be reserved for its determination or refuse the application with or without costs.

(3) If the Court of Appeal orders that the question of law be reserved, the court to which the order is directed must reserve the question for determination by the Court of Appeal.

[4] The Court of Appeal said this at [15] to [18] of its ex tempore reasons given on 13 February 2023:

In the circumstances, we do not doubt that the judge was obliged to give adequate reasons and a failure to give adequate reasons constitutes an error of law. Regrettably, the Questions do not address this issue in an appropriate way. We would therefore dismiss the application under s 304 of the CPA.

In doing so, we note that the accused accepts that this would not preclude an application by the Commissioner to seek from the judge the referral of different questions. We also note that the Commissioner acknowledged that he has the capacity to seek special leave to appeal to the High Court of Australia from the ruling of the judge to refuse the public interest immunity claim.

[5] Chief Commissioner of Police v Crupi [2024] HCA 34; (2024) 98 ALJR 1131.

[6] An unsuccessful application made solely for the purpose of the CCP obtaining the right to seek leave to appeal to the Court of Appeal against an adverse decision on the PII claim.

[7] See Evidence Act 2008, Part 3.10, Divisions 3, 4.

[8] CCP's written submissions dated 7 July 2025, [11]. I note that s 130 of the Evidence Act 2008 is given an extended operation by s 131A of that Act so that it regulates disclosure of information as well as the admissibility of evidence.

[9] CCP's written submissions dated 7 July 2025, [15].

[10] (1992) 77 A Crim R 67, 68-69.

[11] [2000] VSCA 171; (2000) 2 VR 246

[12] Ibid, 257. I note that Neave JA cited Phillips JA's definition with approval in R v Payara [2012] VSCA 266; (2012) 36 VR 326, 333, [37].

[13] (1992) 77 A Crim R 67.