Applicant v Respondent

2 On 24 August 2011, Mr Marchesi's summons came on for hearing before Vickery J.[1] At the hearing before Vickery J, Mr Vasiliou, who was also the second defendant by counterclaim, appeared on behalf of Optquest.[2] The hearing concluded at approximately 12.30pm.

3 In the present proceeding it is alleged that at approximately 2.22pm on 24 August 2011, Mr Vasiliou sent a three page email ("the email") to, amongst others, one of Vickery J's associates and Mr Marchesi. The body of the email (which was exhibited to affidavits filed in this proceeding) commenced "Dear JUSTICE VICKERY". The email contained 25 paragraphs, and included[3] the following six extracted paragraphs:[4]

"IN regards to my CRIMINAL TRUSTEE in BANKRUPTCY I am very SORRY for myself that I did NOT KILLED him back before he FUCK ME and my FAMILY UP and I would have being out of JAIL by NOW and my FAMILY'S '3 properties' will be still there for that matter INDUCTED and NO DAMAGE to heart either in this RESPECT.

...

Now the MATTER RESTS with the COURTS it either COURTS DELIVER JUSTICE to ME and MY FAMILY or a HELP MYSELF to JUSTICE. I have already REACHED and made up my MIND UP it is either the COURT 'JOB' or my PERSONAL JOB' one or the other.

...

This is NOT JUST FRUSTRATING as you KIND self said in COURT today BUT a HEAVY DUTY 'RAW' CRIMINAL ACTIVITY against myself and against my FAMILY and I would LIKE the JUDGE of the SUPREME COURT to INVITE MR MARCHESI at your HOUSEHOLD and LET him FUCK UP you 'WIFE' and FAMILY he already FUCK UP my LIFE TOTALLY in this RESPECT and my WIFE she does NOT want anything to to do with the HOPELESS and CORRUPT COURTS in this RESPECT that is why she wasn't at COURT today.

NOW PART of his APPLICATION is for the COURT to make ORDERS that I will be NO LONGER permitted to sue OTHERS including HIM unless I receive COURT LEAVE but if you DARE to make SUCH ORDERS the other option that it will REMAIN under my discretion is to START KILLING PEOPLE instead of SUING them in COURTS.

...

The other issue that I will like to brink into your attention is the FACT that JUSTICE JESSUP'S JUDGMENT is CORRUPT and CRIMINAL from the TOP to the bottom so BE CARE FULL in this RESPECT and DO NOT WERE other JUDGES 'DIRTY SHOES' or get involved in CASE FIXING like the other JUDGES have DONE.

NOW one LAST WARNING to MR MARCHESI he better start DEALING with my FAKE CREDITORS or he will PAY the PRICE I can not be more CLEARER then THIS for HIM. Because he basically FUCK my LIFE UP I Have the LEGAL RIGHT to FUCK HIM BACK for that MATTER if the COURTS are PREPARE to SUPPORT such CRIMINAL activity against me and that of my FAMILY in PARTICULAR."

4 On 1 September 2011, Vickery J ordered that Optquest's proceeding (other than the counterclaim) be permanently stayed. In addition to making other orders, his Honour directed the Prothonotary to apply by originating motion for punishment of the possible contempt of court arising from Mr Vasiliou's alleged sending of the email. Pursuant to that order, the present proceeding was instituted.

5 In the course of giving his judgment, Vickery J said, under the heading "Other matters":[5]

"42. On 24 August 2011, following the conclusion of the hearing before me, my Associate received an email apparently from Mr Vasiliou addressed to me and copied to the Defendant trustee and his solicitors, relating to the proceeding. The email included the following passages:

'IN regards to my CRIMINAL TRUSTEE in BANKRUPTCY I am very SORRY for myself that I did NOT KILLED him back before he FUCK ME and my FAMILY UP and I would have being out of JAIL by NOW and my FAMILY'S "3 properties" will be still there for that matter INDUCTED and NO DAMAGE to heart either in this RESPECT.

...

NOW PART of his APPLICATION is for the COURT to make ORDERS that I will be NO LONGER permitted to sue OTHERS including HIM unless I received COURT LEAVE but if you DARE to make SUCH ORDERS the other option that it will REMAIN under my discretion is to START KILLING PEOPLE instead of SUING them in COURTS.'

43. The email had no effect on the determination of the applications before me made by either party."

6 In the present proceeding, the Crown contends that the evidence discloses that the email was sent by Mr Vasiliou. Additionally, the Crown contends:

(a) the email and, in particular, Mr Vasiliou's statements set out in the first, second, fourth and sixth extracted paragraphs "were intended to and/or had a tendency to interfere with the due administration of justice, in that those statements:

(i) constituted improper pressure on Mr Marchesi in his capacity as a party in the proceeding [before Vickery J]; and/or

(ii) constituted a threat of violence for the purpose of intimidating Mr Marchesi in his capacity as a party in [that] proceeding; and

(b) the email and, in particular, Mr Vasiliou's statements as set out in the six extracted paragraphs, "were intended to and/or had a tendency to interfere with the due administration of justice, in that those statements:

(i) constituted a threat of violence for the purpose of intimidating the presiding judge and/or improperly influencing the decision of the presiding judge if orders favourable to Mr Vasiliou were not made; and/or

(ii) contained abuse and allegations of impropriety and corruption for the purpose of intimidating the presiding judge and/or improperly influencing the decision of the presiding judge."

7 On 14 May 2012, the trial of this proceeding commenced. Mr Vasiliou pleaded not guilty, and senior counsel for the Crown opened the case. Mr Vasiliou then applied for me to disqualify myself for bias. This was not the first bias application made by Mr Vasiliou in this proceeding. On 14 March 2012, I delivered reasons dismissing a bias application made on that day by Mr Vasiliou. The application made on 14 March related to an unidentified decision, said to have been made by my father, adverse to Mr Vasiliou. In that application, Mr Vasiliou also contended that in managing this proceeding I had been "too harsh" with him.

8 On day one of the trial, Mr Vasiliou's principal complaint concerned my father's hearing and determination of the matter of Vasiliou v Australia's Country Homes Pty Ltd.[6] That said, Mr Vasiliou's submissions also included complaints against me, "the judge who suggested [he] should be charged with contempt [I assume this to be a reference to Vickery J]", one of Mr Vasiliou's former lawyers and an employee of the Court. Specifically, Mr Vasiliou submitted:

"MR VASILIOU: I think in my view, in my opinion, the judge, your father, has acted with a corrupt manner on that particular occasion. He contempted his own court in accordance with the file that I was presented yesterday at the gaol issued by your people here, your legal people. Inside this file is that the actual judge has been charged with contempt of his own court.

...

Your Honour, your father sat on this particular case in 1999 and he intentionally ruled against me, which the law was in favour of me, because basically VCAT had no jurisdiction to hear the matter. It was of a commercial nature, the matter, and the domestic building list in VCAT can only hear matters between people who already have a building contract to build a home that they can live in, which wasn't the case. It was a commercial building of several storeys of a commercial nature and it was just preliminary works to be done of $10,000 maximum and the jurisdiction of VCAT, of that member, sort of the law stops there and your father should have picked it up and he didn't. I feel that your father did it intentionally at that time, so that this corrupt court case has been followed up by various corrupt judges of this court and Federal Court following this case continuously and when they lose the case they had a retrial so they convene again and things like that. So, with due respect to you, I'm not blaming you for your father's sins or whatever happens to your father, but at the moment we've got a very serious case that your court or your people say that I committed an act of contempt of court, which in fact the actual judge who suggested that I should be charged with contempt of court, he contempted his own court, in accordance with the material I that have got here that I can show you.

So, the court was already contempt by that judge. Whatever I done later on or whatever, it was already contempt and that judge should be charged with contempt of court and other various things; like your kind self, you should be charged with contempt of court on 23 February, Marcus Findlay should be charged with contempt of court on that particular day and my lawyer should be charged also for not giving me the correct information and I've spent now two and a half months in gaol.

I had two massive heart attacks, the biggest ones that I've ever had in my life and I lost my nails from my feet and other injuries that I suffered in gaol, plus I've been tortured in gaol by the staff there for weeks, been naked in a frozen environment, intentionally trying to kill me. So there is more to it than just let's have a beautiful court case here.

So, I ask you two things. Step down, first, and that the other thing that I ask you is if the other party still feel that they have a contempt of court issue, they should refer the matter to the Office of Public Prosecutions for the police to add it on to the other charges that is going before the Magistrates' Court, in the normal course of justice where you go through in a Magistrates' Court; if they have enough evidence, then the matter will proceed to the County Court and you go before the judge and jury.

It's no good you sitting down and hearing your own cases and deciding on your own cases. This is your own cases you're hearing. It is a bias situation here, you know. I mean, I'm not against you as a person, Your Honour. I like to feel that I'm more like trying to assist you and like to be more your friend rather than your enemy, and I'm drawing your attention that you should step down, first, and you should refer the matter to the Office of Public Prosecutions to be able to add this contempt of court with the other charges that currently are before the Magistrates' Court."[7]

9 The general principle relevant to the disqualification of a judge for reasons of apprehended bias is that a judge should not sit and determine a case if a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.[8] The ordinary duty of a judge is to hear and decide cases regularly invoked in his or her jurisdiction and to which he or she has been assigned. An objection to a judge sitting on the basis of an allegation of apprehended bias should not succeed unless there is a "substantial basis" for concluding that the judge is disqualified by reason of apprehended bias.[9]

10 The fact that a different judge made or refused to make an order in a different matter some years in the past does not give rise to any basis for concluding (let alone a substantial basis for concluding) that a subsequent judge is disqualified by reason of apprehended bias. The fact that the judges are father and son does not alter this proposition. Notwithstanding Mr Vasiliou's complaints concerning the hearing and determination of the Australia's Country Homes case, there is no basis for contending that these matters require (or even permit) me to disqualify myself. As has been repeatedly said, a judge should not be too willing to accede to applications that they refrain from sitting.[10] Mr Vasiliou is undoubtedly unhappy about some of the orders I have made while managing this proceeding. So much may be gleaned from his unsuccessful application to the Court of Appeal concerning orders made by me in this proceeding.[11] He is also clearly unhappy about the outcome of his proceeding against Australia's Country Homes Pty Ltd. However, none of these matters form any basis (either individually or collectively) for me to disqualify myself from hearing this proceeding. There is simply no substance in any of Mr Vasiliou's complaints. Certainly there is no evidence of any wrongdoing by any of the parties in respect of whom Mr Vasiliou makes complaint. Indeed, apart from drawing my attention to the Australia's Country Homes case, Mr Vasiliou did not give evidence or tender any evidence on his bias applications in support of his complaints or otherwise.

11 For these reasons, I rejected Mr Vasiliou's bias application made on the first day of the trial. Following the dismissal of Mr Vasiliou's bias application, Mr Vasiliou made application to adjourn the trial, submitting that he was "unprepared". Notwithstanding that this is the second trial date fixed for this proceeding,[12] I acceded to Mr Vasiliou's application and adjourned the trial until 21 May 2012.

12 During the course of making his bias application on day one of the trial, Mr Vasiliou suggested that the Crown should refer the subject matter of this proceeding to the Office of Public Prosecutions with a view to the matter proceeding in the County Court before a judge and jury.[13] The short answer to this submission is that the Crown has not proceeded in the way Mr Vasiliou now suggests. As was noted by Brooking JA in The Broken Hill Proprietary Company Limited v Dagi & Ors,[14] trial by jury in cases of contempt has fallen into disuse. His Honour went on:[15]

"It was said in R v Parke [1903] 2 KB 432 at 443 that the last reported case of a criminal information for contempt was R v Williams (1823) 2 LJ (OS) KB 30, although the practical possibility of a criminal information was recognised in R v Gray [1900] 2 QB 36 at 41 and seemingly again in R v Arrowsmith [1950] VicLawRp 17; [1950] VLR 78 at 84. (The power to bring proceedings for an indictable offence by criminal information was abolished in Victoria by s 9 of the Crimes (Classification of Offences) Act 1981.)

It has been said that the last reported example of trial on indictment for contempt in England is R v Tibbits [1902] 1 KB 97, although, as was pointed out by Samuels JA in Registrar of the Court of Appeal v Willesee [1984] 2 NSWLR 378 at 381, that was not in form a prosecution for contempt. In Willesee's case, as appears from page 379 of the report, counsel could not refer to any case in which contempt had been prosecuted in Australia otherwise than summarily, and in the present case counsel were unable to inform us of any prosecution for contempt in Victoria otherwise than by the use of the summary procedure. In Maslen v Official Receiver [1947] HCA 30; (1947) 74 CLR 602 at 610 it was said that the procedure by indictment was undoubtedly still available in cases of contempt, and in Attorney-General v Butterworth [1963] 1 QB 696 at 728 Pearson LJ referred to the suggestion that the procedure by indictment might be revived; compare Morris v Crown Office at 124 and Balogh v St Alban's Crown Court at 93.

The jurisdiction to punish for contempt has flourished and continues to flourish. The reason why no example of trial by jury can be found in Australia and no example of trial by jury can be found in modern times in England is, of course, the existence and scope of the summary jurisdiction to punish for contempt. Lindley LJ observed in O'Shea v O'Shea and Parnell (1890) 15 PD 59 at 64 that contempt is the only criminal offence punishable summarily at common law; compare Fraser v R (No 2) (1985) 1 NSWLR 680 at 692. This unique summary procedure was once thought to have extended to all varieties of contempt since the earliest days of the courts. So it was said by Wilmot J in his unpublished judgment in R v Almon [1765] EngR 25; (1765) Wilm 243 at 254-5; [1765] EngR 25; 97 ER 94 at 99-100, that the power of the Courts in Westminster Hall to punish summarily for contempt out of court as well as for contempt in the face of the court was 'coeval with their first foundation and institution'. The researches of Sir John Fox have, to say the least, cast doubt on the soundness of that view. The jurisdiction to punish contempts summarily appears to have been assumed by the courts over a long period, commencing with contempt in the face of the court. By the eighteenth century, at all events, the jurisdiction to deal summarily with contempts out of court was being exercised by the Court of King's Bench. But, although the views of Wilmot J in R v Almon may not have had a basis historically sound, they were accepted, and it came to be clearly established that the superior courts of record could deal summarily with contempts committed both in and out of court. An attempt to re-open the question failed in John Fairfax and Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351. See further James v Robinson [1963] HCA 32; (1963) 109 CLR 593 at 600-601 and 612-614; Miller, , 2nd ed., Oxford U.P., 1989, pp 20-3; Arlidge and Eady, , Ch. 1.

This summary jurisdiction to punish all forms of criminal contempt, both inside and outside the court, is an inherent one, possessed at common law by a superior court of record: R v Dunbavin: Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434 at 442; R v Metal Trades Employers' Federation: Ex parte Amalgamated Engineering Union [1951] HCA 3; (1951) 82 CLR 208 at 241-2 and 254; R v Forbes; Ex parte Bevan [1972] HCA 21; (1972) 128 CLR 1 at 7; Balogh v St Alban's Crown Court [1975] QB 73 at 92 per Lawton LJ. The summary jurisdiction may be exercised by the court of its own motion. It may be exercised on the application of the Attorney-General or a person having a particular interest in the contempt. The jurisdiction may also be exercised on the application of a private person having no such interest: R v Henningham (1869) Mac (NZ) 712; R v Fletcher; Ex parte Kisch [1935] HCA 1; (1935) 52 CLR 248 at 258 per Evatt J; R v Dunbavin: Ex parte Williams [1935] HCA 34; (1935) 53 CLR 434 esp. at 445 per Rich J; European Asian Bank AG v Wentworth (1986) 5 NSWLR 445; Director of Public Prosecutions v Australian Broadcasting Commission (1987) 7 NSWLR 588 at 595."

13 Some of the relevant legal principles concerning contempt of court were recently set out by Whelan J in R v Slaveski (contempt).[17] His Honour said:[18]

"17. The essence of the offence of contempt of court is conduct which amounts to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice.[19]

18. Thus, to establish the offence of contempt of court it must be proved beyond reasonable doubt that conduct occurred which constituted an interference with or obstruction to the due administration of justice or which had a tendency to interfere with or obstruct the due administration of justice.

19. As to intent, proof of intention to interfere with or obstruct the due administration of justice is not an element of the offence. In Attorney-General for New South Wales v Dean,[20] the Court of Appeal (constituted by Gleeson CJ, Kirby P and Priestley JA) made this clear[21] and went on to observe:

'It is sufficient that the prosecution show that the alleged contemptor had the intention to make the statements which, objectively, had the requisite tendency to interfere...[22]'

20. In Attorney-General for the State of Victoria v Rich[23] Byrne J, in a passage then quoted in the judgment of Winneke P with whom Callaway and Buchanan JJA agreed on the appeal, [24] relevantly said:

'In cases such as this where an accused addressed the judge on the bench deliberately in terms which are abusive and offensive ...I doubt very much whether this Court should be concerned with an inquiry as to what was the actual purpose of the contemnor...In a case like the present...where the acts themselves tend to interfere with the course of justice, it is sufficient that the court be satisfied that they were performed consciously and voluntarily.[25]'"[26]

14 In Witham v Holloway,[27] McHugh J said:[28]

"Criminal contempts are acts or omissions that have a tendency to interfere with or undermine the authority, performance or dignity of the courts of justice or those who participate in their proceedings. Although criminal contempts take many forms, their characteristic attribute is an interference with the due administration of justice either in a particular case or as part of a continuing process. Defiance of the court or its procedures, publication of matters scandalising the court, actions calculated to prejudice the fair trial of a pending case, threats to parties or witnesses and misconduct within the court are examples of criminal contempts."[29]

15 As was submitted by the Crown, the tendency to interfere with the administration of justice is an objective element of the offence of contempt. The requisite tendency has frequently been described as "a real and definite tendency as a matter of practical reality" to interfere with the administration of justice.[30]

16 In Attorney-General v Times Newspapers,[31] Lord Diplock said:[32]

"The due administration of justice requires first that all citizens should have unhindered access to the constitutionally established courts of the criminal or civil jurisdiction for the determination of disputes as to their legal rights and liabilities; secondly, that they should be able to rely upon obtaining in the courts the arbitrament of a tribunal which is free from bias against any party and whose decisions will be based upon those facts only that have been proved in evidence adduced before it in accordance with the procedure adopted in courts of law; and thirdly that, once the dispute has been submitted to a court of law, they should be able to rely upon there being no usurpation by any other person of the function of that court to decide it according to law. Conduct which is calculated to prejudice any of these three requirements or to undermine the public confidence that they will be observed is contempt of court."

17 In In re Dyce Sombre,[33] The Lord Chancellor, Lord Cottenham said:

"Every private communication to a judge for the purpose of influencing his decision upon a matter publicly before him, always is, and ought to be, reprobated; it is a course calculated, if tolerated, to divert the course of justice, and is considered, and ought more frequently than it is, to be treated as, what it really is, a high contempt of court."

18 In Smith v Lakeman,[34] Stuart VC said:[35]

"In Lechmere Charlton's case, Lord Cottenham had said, 'The power of committal is given to courts of justice for the purpose of securing the better and more secure administration of justice. Every writing, letter or publication, which has for its object to divert the course of justice is a contempt'. A threatening letter must be considered as having equally that object, whether addressed to a suitor seeking justice or to a judge or officer of the court."[36]

19 While an intention to interfere with the due administration of justice is not an essential element of a charge of contempt,[37] proof of such an intention renders the offence more serious.[38]

20 Finally, the successful interference with the course of justice is not a necessary element of the offence of contempt.[39]

21 In support of its case, the Crown relied upon affidavits sworn by Stephen Joseph Lee,[40] Michael Lhuede,[41] Brendan John Marchesi[42] and Diana Serra.[43]

22 In his affidavit, Mr Marchesi deposes to being the trustee of the bankrupt estate of Mr Vasiliou, and the party seeking summary dismissal of Optquest's claim before Vickery J on 24 August 2011. In her affidavit, Ms Serra deposes to being one of Vickery J's associates in the period leading up to and including 24 August 2011. In his affidavit, Mr Lhuede deposes to being the solicitor for Mr Marchesi in the proceeding before Vickery J. Each of Mr Marchesi, Ms Serra and Mr Lhuede depose to receiving the email on 24 August 2011. No challenge was made by Mr Vasiliou to this proposition. I accept the evidence of these three witnesses as to their positions and the fact that they each received the email on 24 August 2011.

23 Each of Mr Lee, Mr Lhuede, Mr Marchesi and Ms Serra adopted their affidavits as their evidence in chief. While Mr Vasiliou cross-examined each witness, none of them were challenged in respect of the material to which they deposed. Instead, the cross-examination was largely hectoring and directed to establishing that Mr Vasiliou was the victim of criminal conduct and corrupt activity committed by, amongst other, judges (both Federal Court and Supreme Court), the Prothonotary, court staff, Mr Vasiliou's creditors and the trustee of the bankrupt estate of Mr Vasiliou.

24 At the commencement of the trial, the Crown submitted that on an earlier occasion when Mr Vasiliou was represented by counsel, Mr Vasiliou's counsel admitted on Mr Vasiliou's behalf the sending of the email. However, this was disputed by Mr Vasiliou at trial (both on day one and at the start of day two). In the circumstances, I chose to proceed on the basis that no admission was made (or had been made) by Mr Vasiliou in relation to the sending of the email.[44]

25 In a written outline of submissions filed and served before trial, the Crown submitted that the following evidence combined to establish beyond reasonable doubt that Mr Vasiliou was the author of, and sent, the email:

• It was purportedly signed by Andrew Vasiliou;
• It contained the home address of Mr Vasiliou as identified on court documents;
• The email address [on the email] is the contact email for Mr Vasiliou as appears on court documents filed by Mr Vasiliou (Serra Affidavit para 26.3);
• Diana Serra, associate to His Honour Vickery J, Michael Lhuede and Brendan Marchesi all depose to having received numerous emails from Mr Vasiliou in the course of the proceeding, including court documents later relied upon and referred to in the proceedings, from that email address (Serra Affidavit 4-6, 11, 14, 23, 25, 26; Lhuede Affidavit 6; Marchesi Affidavit 13-14);
• Mr Vasiliou used the same email address to communicate with the court and parties in relation to this contempt proceeding (Exhibits SJL-6), including seeking adjournments and in relation to bail applications, explaining failure (sic) to appear, those same explanations being used by him orally in court and references being made to those emails;
• Ms Serra identified Mr Vasiliou as the same person who spoke with her on the telephone and referred to email communications from that email address (Serra Affidavit 5, 11, 21, 24, 26.5-26.7);
• In a further email sent on 24 August 2011 (exhibit DS-6), Mr Vasiliou refers back to his earlier email and notes that 'Diana' was 'most cooperative', which can be considered a reference to his telephone discussions with her;
• The Email referred to matters which took place at the hearing on the morning of 24 August 2011;
• At the hearing on 24 August 2011, Mr Vasiliou referred to communications he had had with His Honour's chambers (exhibit DS-3, p2);
• The Email contained the same signature panel as other emails from Mr Vasiliou (Serra Affidavit 26.9);
• The style of the Email was similar to other emails written by Mr Vasiliou in that there were many words in capital letters and some words in red (Serra Affidavit 26.9);
• In an email in this contempt proceeding sent to Stephen Lee, purportedly from Mr Vasiliou (SJL-7), Mr Vasiliou admits to sending the Email - he says (among other things):

NOW that I READ back my E-mails are 'HOT EMAILS' for SURE but are those TRUE E-mails?

...

Although I totally DO NOT AGREE with BAD E-mails the 'NASTY' APPLICATION of a LAWS by a JUDICIARY MEMBER it FAR WORSE CRIME than NASTY E-MAILS that are the 'FRUITS' of your nasty practices against me and my FAMILY.

SO even if I apologized to you ALL for those 'NASTY' E-mails what is the END result?

...

As Justice VICKERY J said in his JUDGMENT the 'nasty' Emails sent by ME it did not ADD or SUBTRACTED to his Honour's JUDGMENT a JUDGMENT that I am too embarrassed to let any legal practitioner read it."

26 If it had been necessary to determine the correctness of these submissions, then I would have accepted them. The evidence led by the Crown (and which is referred to in its submissions set out above) satisfies me beyond reasonable doubt that Mr Vasiliou wrote and sent the email on 24 August 2011. Although there is a circularity in accepting, from another email purportedly written and sent by Mr Vasiliou, that Mr Vasiliou wrote and sent the email the subject of this proceeding, putting that matter to one side, the first twelve points made by the Crown in support of their submission that Mr Vasiliou wrote and sent the email, have real substance. The combination of those factors establish these matters beyond reasonable doubt. However, in arriving at this conclusion, I would not have had regard to the Crown's 13th point that the email to Mr Lee (SJL-7) constitutes an admission by Mr Vasiliou that he sent the email.

27 That said, the reason it is not necessary to determine the correctness of the Crown's submissions on this point is because when Mr Vasiliou came to give his evidence he readily accepted that he was the author and sender of the email. Having listened to Mr Vasiliou's evidence, I am satisfied beyond reasonable doubt that Mr Vasiliou wrote the email and sent it as alleged by the Crown at approximately 2.22pm on 24 August 2011.

28 Following the conclusion of the Crown case, Mr Vasiliou tendered an affidavit sworn by him on 21 May 2012. Mr Vasiliou described this affidavit as "just a brief outline of the events that took place during the eight years of continued criminal activity against myself and my family involving the actual judges of this court".[45] The affidavit is 65 paragraphs in length. It does not address the Crown's case in relation to the sending of the email at 2.22pm on 24 August 2011. The affidavit concludes:[46]

"I trust that this honourable court wake up to reality and stop the criminal conduct against me and particularly against my family or 'face' the 'tunes' of the 'music' because although I am a 'clean' man I can get dirty if I jump in a 'dirty' lake or 'wagon' of some kind so instead of further punishment I expect the court to respect me and my family."[47]

29 Following the tendering of Mr Vasiliou's affidavit, the following exchange occurred with Mr Vasiliou:

"HIS HONOUR: Now, that's done. Do you wish to give further evidence, or are you content now for Mr Langmead to cross-examine you?---Yes. I say that I have been fallen a victim of miscarriage of justice.

Mr Vasiliou, it may be said against you in due course that even if I was to accept all of that, what the email you sent which is the one you sent to Justice Vickery that we all know this case is about, that constitutes a contempt, and it might be said against you that even if I accepted everything you said that you have been the subject of a bad miscarriage of justice, it's still a contempt of court to write such an email?---No, I don't agree with Your Honour. What I submit is there is no court, there is no judges in this court, it's only the building. The only thing truthful about this place here is the buildings. Everything else is fake. Everything else is criminal. Everything else it's not run in accordance with the law. And the law, Your Honour, the power of the law, and the way you administer the law is totally different what is happening here today. I found it totally unacceptable for certain behaviour to be carried out by the judges and leaving the judges alone which they can do whatever they feel like it, and there's nobody else to give account for is, I'm worried about the officers of the court that prevents the course of natural justice and prevents the course of real justice being delivered to me and my family, protection for my assets, my properties, of my family and everything that sits on this land, that it's been ransack, salvage, and it come to the stage that I can't even think that all those assets that took 45 years to establish has vanished overnight due to criminal activity involving the judges themselves. And I am sorry to say that, but when we do a court case, when we go do a hearing we have to somehow face the truth, however bitter it is, how terrible it is, you have to face the truth, you know, you can't just bypass the truth and pick on one person, 'Oh, he sent two emails,' or, 'He sent one email,' and that's - you breach the rules of the court, you do that, when the actual judges has acted inappropriately and caused all this problem. Now, you said earlier there was a question of law and has to be heard by a judge, alone, and all that sort of thing. It may be the case, but the behaviour of the judges, the way it's done, the frustrations that they put me through all these months by seeing the judges working on this case on my company behind the scenes in favour of these two people that you saw before here, giving them everything they want every time they ask, they giving them, charge, costs on indemnity basis, and that's very rare for the court to react that way, you know. So the situation is, if was supposed to be the case that the judge has to hear the case because you can't not get involved the jury, which is not true, in my submission, then the judge has to be clear about it, and say, look, 'Mr Vasiliou, unfortunately you asked for the jury, but we cannot provide the jury, because I have to do it myself' and all that. But for me to attend a court of law and I see the judge acting very weird and rushing things through, not taking any notice of new evidence that emerged in March April this year, or last year actually when the case was on, it had no relevance, even Justice Jessup's and Justice Weinberg's decision in the Federal Court, the court has to take into account the new evidence. So the judge on the day he acted improper, contempt his own court, in actual fact the judge should be charged for criminal offence, should be put in gaol. Now, who's going to charge him? There's nobody there to charge him. Who's going to charge him? Nobody's going to go near the judges. Who's going to tell the judges what to do? No one. There's nobody in Victoria that can charge judges for criminal offences, so the judges is the power, you know, like, they're like courts, standing on two feet and then they do whatever they feel like. Now, the issue here is this: there is no passage of the law that you have to by law weigh all the emails, all emails anybody sends to someone and if you send, for instance, 300 good letters and you send three not so good letters or unpleasant letters, then those three letters doesn't count. It has to be a continuation of three emails or letters, a continuation of such an offence in order for the court to take it into account, because when you writing emails you send submissions, and you seeing things done against you, improper things that should not happen, and then you can see your assets being savagely attacked by the people, and the court is behind them, and in that event, Your Honour, there's nothing left, there's no court, there's no respect by the judges themselves, by the staff of the court, and then the thing gets out of the way. So if when the Titanic sunk people used to break the doors and all that sort of thing trying to get out to save themselves, and some officers used to say, well, 'You break into the properties of Star Liner' or something, you know, in the movie, 'I want to report you to the captain,' but the people, the boat was sinking and the people rushing for their lives, they're not going to care about breaking the door or breaking the gate down or anything like this. So you cannot isolate and take a person from that ship and say, 'Well, I'm sorry, but you break the door of that Titanic and you have to charge and pay for it,' but the Titanic sunk, but doesn't matter if it sunk, you still committed the act of damaging somebody else's property, you know, so, you know, this is similar situation where I been constantly been abused by the court system for 15 years, and I wrote so many letters to Attorney-Generals, so many letters to Chief Justices, so many letters to everyone, and nobody, nobody cares. But when the others fear or receive something slightly not proper, they are rushed, and they get all the service and support and everything that they want, you know, without asking too much trouble, and nobody's there to protect me and my family, so in that circumstances you tend to get out of your way or turned out to be - do something that it might not be proper, but when other people are engaged in unconscionable conduct in lots of times, you report them to the police, you report them to the authorities and they don't do anything about it, and even themselves not correcting themselves out, then what else can I do? Now, I'm you, Your Honour, you're a judge and I'm not a judge, I'm a prisoner now, I'm asking you what would you do if somebody comes in and steal five properties of major value from you? Would you just say, 'Well, that doesn't matter, just let them go, it's okay.' Particularly when they break into my laboratory, professional laboratory without telling me and took all this equipment out, some of them were brand new in cellophane bags still, and they say there was no value into it, that's not true. There is so much values was in there that it could be sold, even a dollar each, please, or 50 cents is still value, it's still something, so Mr Marchesi has done a lot of criminal things to me, and Mr Lhuede, and he received a lot of support from the judges illegally. He's been involved, Mr Lhuede, with perjury. He got this lawyer to draw up the trust to give fake evidence in the second trial, which is totally different to the first evidence he gave before Justice Weinberg to win the case. Now, everybody was working, everybody's working together, everybody is there to destroy everything that stands out, and leave my children with nothing, and leave me with bitter, bitterness in my mouth - not for myself, I don't care, I'm happy where I am now, to stay in gaol forever, I don't care if I stay there for 500 years, you know, I set myself in there, everything's perfect, and I just live like at home there, it's just - in the beginning I was abused, I was put in refrigerations, I had heart attacks in the refrigerations that they put me in because my body froze and my blood could not circulate, they switch off the water for four days, they haven't feed me for four days, they have me nude in a one small room and with a huge air conditioning intentionally on top of my body, and they just left me in there, you know, or until I had a heart attack and all that, and they couldn't care less either, and I managed to survive myself, so all these criminal things against a person, just cannot be forgotten. And I don't care about Mr Marchesi, he can wear a nice tie and a suit, and whatever you can think of, but he's a criminal. He's a very, very big criminal man. Now, he managed to get a licence for a trustee. Now, it's a, he says, you know, he got a licence, he's proud of his licence and he mentioned it in his affidavit and that sort of thing, but he's a criminal person, the same as Mr Lhuede, he's a criminal lawyer. So - and what upsets me most is that all Mr Vickery or Justice Vickery sat on the case, he put a judgment against me and my wife and my company, that I could never ever initiate any proceedings in the Supreme Court unless I get court leave. Now, that's closing the door of justice, forever. Now, since he done that, I attempted to get leave from three different judges, and they all been refused, you know, so there's no avenue for me open now for the justice. I'm not going to get justice. I'm not going to get anything. So Justice Bell says to me, he says, 'Mr Vasiliou, you seem to be very successful person in your life, what happened to you?' You know, so I told him, 'That's because of corruption, because of the law is not followed, it's not respected by the court itself.' The law is straight-forward and is so clear, that if you follow the law correctly, nobody gets hurt and nobody loses anything. But if you take the law in your own hands that's when things go wrong. The law is a very, very fine machinery that had to be followed down to its detail. You know, I say that this contempt of court charge - I can't see where I contempted court. Now, if you say I sent emails with threaten words in there, I say that that's a communication emails. Now, maybe the court or the jury will see the emails when we get to the jury at the County Court as a threatening emails, but I say it wasn't, because I say, and I submit that it's better to send someone a warning email rather than killing, but if he insist to behave in a criminal way against the person, then the end thing is to kill him, and that's what's going to happen in the end. He's not going to get away, no one's going to get away with it, you know, I be ashamed to myself if I leave these people to take all my assets, sell them to belong to them and put in their pockets, and my kids is paying mortgages, 3 and $4,000 a month. I will not say any more than that, because this court, it's corrupt from the top to the bottom. There's no ethics in this court. There's no court. So I say that I'm not guilty of contempt of court because there is no court. There's no court. It's only the building, look at this beautiful building, magnificent, but that's all, we got the building and that's all we have, we haven't got courts, Your Honour. I say that I don't have anything to say against you, I know you put me in gaol, but I forgive you for that. It was very hard for me, you upset me a lot on the 2nd of March and I had a heart attack, the biggest hard attack I had in my life. I couldn't breathe for 24 hours and it was very painful, but apart from that, I don't have anything against you personally. And I want you to know that if I upset you in any way I apologise for that, and that's all I can say to you, because even the other day when I come to the hearing last week and I was a little bit sympathise about you, because I was a bit harsh on you and all that sort of thing, I asked you to step down and all that sort of thing, but I had my reasons, and I've lost a lot of money and I am going to get my money back, I'm going to get my five properties back, one way or another I am going to get my five properties back or else. Now, I suggest that you talk to your judges inside and work out a strategy how I'm going to get my five properties back."[48]

30 The following may be gleaned from this exchange. Mr Vasiliou's position is:

(a) there are no Supreme Court judges; there is only the Supreme Court building; everything else is criminal;[49]

(b) if a person sends a "not so good letter" or "unpleasant letter", but also sends many more "good letters", then there should be no consequences in respect of the so-called "not so good" or "unpleasant letters";[50]

(c) if you believe (or perhaps only if you rightly believe) you have been the victim of serious injustice at the hands of a court and the only remedy is to commit a contempt of court, then you are entitled to do so;[51]

(d) it is better to send a warning email rather than killing someone without warning, but if the person continues to behave against you "in a criminal way ... then the end thing is to kill him, and that's what's going to happen in the end";[52] and

(e) one way or another Mr Vasiliou is going to get his properties back "or else".[53]

31 Following his evidence-in-chief, Mr Vasiliou was cross-examined. Mr Vasiliou was an unimpressive witness in cross-examination. He was argumentative and frequently failed to address the cross-examiner's question. I formed the view that some of this was deliberate, particularly in respect of questions that really only permitted of answers that would not have assisted Mr Vasiliou's case. That said, during the course of his cross-examination, Mr Vasiliou admitted writing and sending the email.

32 During the course of his cross-examination, Mr Vasiliou was asked and answered the following questions:

"Wait, Mr Vasiliou. You are the author of these words that constitute the threat to Mr Marchesi. I'm asking you what you intend to convey?---It is not a threat to Mr Marchesi. Don't use the word 'threat', it's no threat at all.

Let me use your words, 'Now one last warning to Mr Marchesi. He better start dealing with my fake creditors or he will pay the price.' Let's call it a warning. It is a warning that if he doesn't start dealing with your fake creditors he will pay the price. Now, Mr Vasiliou you have agreed you were the author of those words. I'm asking you to tell the court what you meant by the words 'pay the price'. What is the price he might pay?---You tell the court yourself.

Mr Vasiliou - - -?---You are smart barrister, you know those words, you know what you want to tell the court, tell the court what those words means."[54]

"I put it to you one last time, that when you said this morning if he persists that is what's going to happen in the end, and that was following the words, 'Better to send someone a warning email than to kill him,' that's the price you are referring to?---No, not necessarily. A lot of people referring to price paid by court or something or another, but I'm not going to elaborate any more about this business here, and that man, that person should have been dead in 2004.

Which person?---Mr Marchesi."[55]

"I put to you that that threat - that statement directed to Mr Marchesi is a highly threatening and intimidating statement, do you agree with that?---No. 'I'm sorry I did not kill him,' doesn't say that I kill him now, it's too late now.

Did you want to convey that to him?---What do you mean?

That you are sorry you didn't kill him?---Yes, I am sorry I didn't kill him."[56]

"You wanted every word in this email to be read and understood by the judge and by Mr Marchesi, didn't you?---Yes, I do. By the judge and by Mr Marchesi so he can understand clearly what's my position."[57]

"These letters, it doesn't mean anything at the moment, because it's nobody's dead yet, but I don't know whether I be able to kill anybody or not, that's remain to be decided ...".[58]

34 Later in his re-examination, Mr Vasiliou said:[59]

"Now, one of the problems of emails is that you send them when you very upset, you try to tell someone a message, and the ease of just clicking the mouse and send the emails, it's not the same as actually posting a letter, you have to put it in an envelope, you have to put a postage stamp and that sort of thing, and have to go to the letter box and post it, and that sort of thing. It's the ease of sending an email, an email is one of those beasts that, although it's good tool, it's also a bad tool for any communication because it allows immediate transfer of anger, immediate transfer of disorder, immediate transfer of anything that you can think of through this magnificent machinery."

35 However, if this later passage was meant to be a statement of regret for sending something inappropriate because of the ease with which modern communication can be engaged in, then it does not sit well with Mr Vasiliou's earlier evidence that he wanted every word of his email to be read and understood by both Vickery J and Mr Marchesi.[60]

Did the sending of the email constitute a contempt of court?

36 Having found beyond reasonable doubt that Mr Vasiliou wrote and sent the email on 24 August 2011, the next question is whether the sending of the email to the chambers of Vickery J and to Mr Marchesi constituted a contempt. The short answer is that it did. I am satisfied beyond reasonable doubt that the email had a tendency to interfere with the due administration of justice. The email was calculated to place improper pressure on Mr Marchesi in his capacity as a party to the proceeding before Vickery J. Self-evidently, it constituted a threat of violence against at least Mr Marchesi. The statements in it (extracted above) were calculated[61] to intimidate and improperly influence the decision of Vickery J if orders favourable to Mr Vasiliou were not made. In making this finding, I have not just had regard to the extracted paragraphs of the email: I have had regard to the whole of the email, considering the extracted paragraphs in their context.

37 There can be no doubt that the action of writing the email was an intentional and deliberate act. Mr Vasiliou addressed the email to Vickery J and copied it to Mr Lhuede and Mr Marchesi at email addresses that had been used before. There can be no doubt that Mr Vasiliou intended to send the email to its addressee and each of its recipients in the knowledge of their respective capacities in the proceeding. The email had a tendency to interfere with the administration of justice in that it had a tendency to dissuade Mr Marchesi from continuing to act as Mr Vasiliou's trustee in bankruptcy, and a tendency to influence the decision of Vickery J. The fact that ultimately it did not have either of these effects is not relevant.

38 Further, I am satisfied that Mr Vasiliou intended to interfere with the due administration of justice in the way alleged by the Crown. As was said by Fullagar J in Davis v Baillie,[62] "a person may be presumed to intend the natural and probable consequences of his acts". While this may not always be the case, on the whole of the evidence led at trial, I am satisfied beyond reasonable doubt that Mr Vasiliou's purpose in sending the email was to interfere with the due administration of justice in the way I have described by making the threats of violence made in the email.[63] To the extent that Mr Vasiliou swore otherwise during the course of his evidence, I do not accept his evidence.[64]

39 As part of his case, Mr Vasiliou tendered a folder of emails written by him both in this proceeding and in the proceeding before Vickery J. These were tendered as part of his argument that if you send 300 good emails and three not so good or bad emails, then the three not so good or bad emails "do not count". This was asserted to be a proposition of law derived from a jury's verdict in an unidentified County Court criminal trial. While in some circumstances it may well be appropriate to construe an email (or other communication) by reference to other emails sent (or communications made), the bald proposition advanced by Mr Vasiliou is without merit in the present case. Having read the folder of emails tendered by Mr Vasiliou, I am unable to conclude that they provide any defence or negative (or cast doubt on) any element the Crown is required to prove beyond reasonable doubt.

40 Similarly, insofar as Mr Vasiliou contended that what he did was necessary having regard to the way he had been treated by the courts, judges, court staff or his trustee in bankruptcy, I am satisfied beyond reasonable doubt that he had no lawful excuse (and specifically, no necessitous circumstances) for sending the email.[65]

41 A recurring theme of Mr Vasiliou's defence is that this is not a simple case about an email sent on 24 August 2011. Mr Vasiliou contends that this proceeding must be looked at in the wider context of what he says is the criminal conduct perpetrated against him by many people over the years leading up to the hearing before Vickery J. This approach and these contentions were, to say the least, misguided. Having had an extensive opportunity to observe Mr Vasiliou, it is not possible for me to determine whether Mr Vasiliou's approach and these contentions were borne solely of a sense of injustice in respect of past matters, or whether, on the other hand, the course taken by Mr Vasiliou was in part a strategy thought by him to be the best response to the Crown's case. In any event, notwithstanding repeated attempts by the Court to attempt to direct Mr Vasiliou to what was relevant in this proceeding, Mr Vasiliou failed to engage with the central issues raised by the charge against him. In the end, the approach taken by Mr Vasiliou neither established a defence nor negatived (or cast doubt upon) any element of the charge against him.

42 During the course of his cross-examination, Mr Vasiliou raised one further point. He said that the email was not a threatening communication to Vickery J and Mr Marchesi. Rather, he said the email was a submission to the judge, copied to the parties as proper practice dictates. Whether what was said by Mr Vasiliou in this regard was evidence or a submission, I reject it. As said by Mr Vasiliou at trial, this statement appeared to be one that occurred to Mr Vasiliou during the course of his cross-examination. Specifically, Mr Vasiliou had never suggested any such thing prior to trial or in any of the other emails he wrote in the course of this proceeding, and which were tendered at trial. That said, I do not conclude that Mr Vasiliou made up this suggestion in the course of his evidence. It is sufficient for me to say that I do not accept that the email constituted a submission (in the way that word is usually used), or that the email was thought by Mr Vasiliou to be a proper submission at the time he sent it.

43 Finally, I should say that it is, of course, not the function of this Court to re-litigate all (or any) of the myriad of applications and proceedings to which Mr Vasiliou has been a party, and in respect of which he is unsatisfied as to the outcome. In saying that, it should not be thought that anything said or tendered in this case has caused me to question the correctness of any earlier decision involving Mr Vasiliou, or the appropriateness of the conduct of the parties in respect of whom he makes complaint and the various judicial officers involved. Put shortly, and for the reasons given above, the Crown has established beyond reasonable doubt the elements of the contempt particularised in the originating motion.

44 I find the contempt alleged by the Crown against Mr Vasiliou to have been proved.

[1] It is not necessary to set out the steps that occurred between the filing of the summons on 28 January and the hearing on 24 August. These are set out in Optquest Pty Ltd v Marchesi [2011] VSC 428, [6] (Vickery J).

[4] Paragraphs 14, 18, 20, 21, 23 and 24.

[5] [2011] VSC 428, [42]-[43].

[6] [1999] VSC 462.

[8] See generally Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 at 344 [6].

[9] Ibid at 348 [19]. See further Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 352.

[10] Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288; Re JRL; ex parte CJL [1986] HCA 39; (1986) 161 CLR 342; and Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 348 [19]-[20].

[11] See Vasiliou v R, unreported Court of Appeal (Maxwell P and Hansen JA), delivered 11 May 2012.

[12] Originally this trial was fixed for hearing on 14 March 2012. However, the trial was adjourned at Mr Vasiliou's request to 14 May 2012 in order for Mr Vasiliou to obtain representation (shortly before 14 March 2012, Mr Vasiliou sacked the lawyers who were then representing him).

[14] [1996] VicRp 62; [1996] 2 VR 117, 136-7.

[16] See also Re Perkins; Mesto v Galpin & Ors [1998] 4 VR 505, 511.

[17] [2011] VSC 643. See also, on appeal, Slaveski v R [2012] VSCA 48.

[19] In re Dunn; In re Aspinall [1906] VicLawRp 84; [1906] VLR 493, 497; Parshuram Detaram Shamdasani v King - Emperor [1945] AC 264, 268; Lane v Registrar of Supreme Court of New South Wales [1981] HCA 35; (1981) 148 CLR 245, 257; and Lewis v Judge Ogden [1984] HCA 28; (1984) 153 CLR 682, 688.

[20] (1990) 20 NSWLR 650.

[21] (1990) 20 NSWLR 650, 655.

[22] (1990) 20 NSWLR 650, 656.

[23] [1998] VSC 41.

[24] [1999] VSCA 14.

[25] At first instance [1998] VSC 41 at [16]; and on appeal [1999] VSCA 14 at [18].

[27] (1995) 183 CLR 525.

[29] See further, John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351; Hinch v The Attorney-General for the State of Victoria [1987] HCA 56; (1987) 164 CLR 15 and Attorney-General for New South Wales v Dean (1990) 20 NSWLR 650.

[30] See for example, John Fairfax & Sons Pty Ltd v McRae [1955] HCA 12; (1955) 93 CLR 351; Hinch v The Attorney-General for the State of Victoria [1987] HCA 56; (1987) 164 CLR 15 and Davis v Baillie [1946] VicLawRp 76; [1946] VLR 486, 492, in reference to the word "calculated" being held to mean "likely" when used in contempt cases.

[31] [1974] AC 273.

[33] [1849] EngR 498; (1849) 1 MAC&G 116, 121; [1849] EngR 498; 41 ER 1207, 1209.

[34] (1857) 26 LJ Ch 305.

[36] See further, Attorney-General v Butterworth [1963] 1 QB 696.

[37] Attorney-General for the State of Victoria v Hinch [1987] HCA 56; (1987) 164 CLR 15.

[38] Attorney-General for New South Wales v Dean (1990) 20 NSWLR 650; Director of Public Prosecutions v Johnson [2002] VSC 583, [9]; and R v Slaveski (contempt) [2011] VSC 643, [22].

[39] Smith v Lakeman (1857) 26 LJ Ch 305; Harkianakis v Skalkos (1997) 42 NSWLR 22; and R v Nationwide News Pty Ltd, unreported Gillard J, delivered 22 December 1997.

[40] Sworn 18 October 2011 and 22 December 2011.

[44] Cf s 184 of the Evidence Act 2008.

[47] This paragraph of the affidavit (like some other material typed by Mr Vasiliou) was typed in bold capitals.

[61] In the sense of "likely", as used in contempt cases: see Davis v Baillie [1946] VicLawRp 76; [1946] VLR 486, 492.

[62] [1946] VicLawRp 76; [1946] VLR 486, 493.

[63] Cf Ex parte Tuckerman; re Nash [1970] 3 NSWR 23, 28 and Attorney-General (Victoria) v Rich [1998] VSC 41; (1998) 102 A Crim R 389, 393 (on appeal, Rich v Attorney-General (Victoria) [1999] VSCA 14; (1999) 103 A Crim R 261).

[65] Cf R v Loughnan [1981] VicRp 43; [1981] VR 443, 448 and R v Rogers (1996) 86 A Crim R 542, 546.