Tessa v DPP

Mr S Bruckard, Solicitor for Public Prosecutions (Cth)

1 The applicant is facing trial in the County Court on five charges of obtaining property by deception contrary to s 81(1) of the Crimes Act 1958, and two charges of obtaining a financial advantage by deception contrary to s 82(1) of that Act. His trial was initially listed for hearing in November 2019. It was not reached, and Covid-related delays have subsequently prevented it from being heard in 2020 and 2021. In August 2021, it was set down for a hearing commencing on 22 February 2022.

2 A final directions hearing was listed before Judge Mullaly on 9 February 2022. Before the hearing took place, his Honour vacated the hearing, and directed that the final directions hearing be listed before Judge Hampel - the judge to whom the trial had been allocated. Judge Mullaly then conducted a short directions hearing, on 9 February 2022, where he informed the parties that he had taken this step because of a conflict of interest arising from the possible involvement of his brother in ASIC investigations which may have led to the applicant being charged - his Honour's brother being, as his Honour put it, 'a senior person at ASIC and he may have even been the informant at some stage'.

3 The final directions hearing took place before Judge Hampel, over WebEx on 14 February 2022. The applicant appeared for himself (he having been 'self-represented' since September 2020). After the hearing, the applicant sent a number of emails to the Court expressing his lack of confidence in Judge Hampel, and his general dissatisfaction with what occurred during the final directions hearing. In essence, the applicant sought to have the judge recuse herself from any further hearing relating to the charges.

4 On 21 February 2022, the judge refused the applicant's application that she recuse herself.[1] The applicant then applied to the judge for a certificate under s 295(3) of the Criminal Procedure Act 2009. This application was also refused by the judge.[2]

5 Subsequently, the applicant filed an application in this Court under s 296(1) for a review of the judge's refusal to certify. In accordance with Practice Note SC CA 2, the applicant also filed an application for leave to appeal against the judge's refusal to recuse herself (although, as s 295(3) makes clear, a party may not seek leave to appeal unless he or she has first been granted certification).

6 In his application to review the judge's refusal to certify, the applicant identifies the grounds of his application as:

(a) Inheritance of conflict of interest.

(b) Bias, prejudice, discriminatory [conduct].

(c) The defence seeks an appointment of neutral judge/trial transfer to Supreme Court.

7 In his application for leave to appeal, the applicant identifies his grounds of appeal as:

(a) Judge Hampel was appointed and conversed on the core issues of the case with Judge Mullaly who is the brother of ASIC informant and has vacated the trial on the grounds of conflict of interest.

(b) In dealings with Judge Hampel both remotely and in court it was demonstrated by Judge Hampel on ongoing bases an absolute bias, prejudice and discriminatory approach to the proceeding/defence I, Mr Samuel Tessa, by doing everything in her power to subdue and restrain defence's ability to litigate the case on equal terms with the [counsel] representing [the] DPP.

8 As will appear, we consider that the Recusal Ruling was correct, as was the Certification Ruling. The application for a review of the judge's refusal to certify will therefore be refused. Further, there is no basis upon which this Court could (or should) order the transfer of the applicant's trial to the Supreme Court.

Proposed ground (a): inheritance of a conflict of interest

9 Proposed ground (a) relies upon an assertion that Judge Hampel 'conversed on the core issues of the case' with Judge Mullaly. In order to make good that allegation, the applicant pointed to the transcript of the hearing before Judge Mullaly on 9 February 2022.

10 As we have already said, at the commencement of the hearing on 9 February 2022, Judge Mullaly told the parties that the matter was being referred to Judge Hampel because of the conflict of interest arising from the possible involvement of his Honour's brother in the case. A discussion then occurred between the applicant and Judge Mullaly about the release of names of people who were questioned by a Royal Commission, so that subpoenas could be issued to those people. As part of that exchange, the following was said:

HIS HONOUR: I understand your point. I understand that you say that this is a base requirement for you to be able to mount your defence and for the trial to go on.

ACCUSED: Exactly.

HIS HONOUR: Please. I'm not going to enter into the substance of that in any way, but I will make this transcript or make it clear to Judge Hampel that that is a concern that you have.

11 In his original application to Judge Hampel to disqualify herself, the applicant first sought 'a newly appointed judge by the High Court to conduct [the proceedings]'; before later seeking, 'a newly appointed judge from a higher court'. Judge Hampel understood this part of the applicant's application to her as involving an allegation of 'conflict of interest, as another judge of the [County Court] has a conflict of interest due to a familial relationship with the ASIC informant'.[3]

12 On 1 March 2022, the applicant made a second application to Judge Hampel for her to recuse herself. In the course of that second application, the applicant asserted that there must have been discussion between Judge Hampel and Judge Mullaly because Judge Mullaly had said, words to the effect, that 'he [Judge Mullaly] would ensure I [Judge Hampel] was informed of what had occurred at the Directions Hearing before him'.[4]

13 There is in fact no evidence of any communication between Judge Mullaly and Judge Hampel. To the contrary, in the course of the Recusal Ruling Judge Hampel said that she had had no communication with Judge Mullaly concerning the applicant's trial, or indeed any communication at all, once Judge Mullaly had identified the potential conflict of interest.[5]

14 During the directions hearing on 9 February 2022, Judge Mullaly did not state that he would have any conversation with Judge Hampel. He said, in reference to the applicant's application to be provided with information, that he would not go into the substance of the matter, but he would 'make this transcript [available] or make it clear to Judge Hampel that that is a concern that [the applicant has]'. We do not read what his Honour said as conveying that he would have any actual conversation with Judge Hampel - and certainly not any conversation about 'the core issues of the case'. At most, Judge Mullaly said that he would make clear (by the provision of the transcript or some other appropriate means) that the applicant was concerned about the issue that the applicant had sought to raise with him.

15 In any event, having regard to what her Honour said in the Recusal Ruling, there is simply no basis upon which this Court could conclude that there was any conversation between Judge Mullaly and Judge Hampel which would in any way justify the disqualification of Judge Hampel from hearing this proceeding.

16 In oral argument in this Court, the applicant submitted that, irrespective of any conversation that may or may not have occurred between Judge Hampel and Judge Mullaly, Judge Hampel should be disqualified because she was appointed to the case by Judge Mullaly who was conflicted and could not himself hear the case. The applicant's submission was that a judge who is conflicted, and cannot hear a case, cannot appoint another judge of his or her choosing to hear the case. As the applicant put it, 'Judge Hampel is nothing but a puppet judge for Judge Mullaly'.

17 From the transcript of the directions hearing conducted before Judge Mullaly on 9 February 2022 and the recusal ruling[6] it appears that, before Judge Mullaly realised he had a possible conflict of interest, Judge Hampel had already been appointed as the trial judge. In those circumstances, it appears that Judge Mullaly arranged for the trial judge (the already appointed Judge Hampel) to conduct the final directions hearing. Thus, the underlying premise that Judge Mullaly, knowing he had a conflict, appointed Judge Hampel to be the trial judge is not well-founded.

18 In any event, even if Judge Mullaly had allocated (as part of his Honour's managerial responsibilities in the County Court) the proceeding to Judge Hampel, we see no basis for any legitimate cause for concern or complaint. The applicant's assertion that Judge Hampel is Judge Mullaly's puppet is utterly without foundation.

Proposed ground (b): bias, prejudice and discriminatory conduct

20 Proposed ground (b) asserts that Judge Hampel has been biased, prejudiced against the applicant, and has taken a discriminatory approach against him. In support of this ground, the applicant relies upon matters that occurred both before and after the Recusal Ruling. In particular, he relies on what occurred during the WebEx hearing on 14 February 2022 and during subsequent in-court hearings culminating in her Honour refusing the applicant's second application for her to recuse herself. For example, the applicant asserts that there was 'clear bias and prejudice' at an in-court hearing on 28 February 2022.[7] As typed in a document the applicant attached to the notice of application for leave to appeal and headed, 'Exhibit 3', the 'clear bias and prejudice' at this hearing was demonstrated by:

Bringing the issues of 'covid'; 'safety' in justification/reasoning for restraining the defence in its ability to litigate the case on equal ground as procession. Is defence to comprehend that because of the 'covid' the restrictions are more suitable and more appropriate to be applied to defence and not to prosecution, where a defence put under restrain and prosecution is not, was not wearing a face mask and only after I have pointed it out it was put back on. Reasoning of 'safety'? Is defence been charged or demonstrated any aggression, NO, so who is safety or what safety is Judge Hampel so concerned about?

The restrain[t]s are a deliberate and intentional attempt to subdue defence.

Totally unjustifiable.

Refer transcript hearing: 28 February 2022.

21 We have read the transcript of the hearings before Judge Hampel. Far from demonstrating any bias, prejudice or discriminatory conduct, they show a judge doing her best to manage an accused who is rude, difficult, and not willing to comply with directions given to him. More specifically, there are times when the accused refuses to follow basic procedural directions by her Honour; talks over the judge; and refuses to stop talking when directed to do so. Plainly, the conduct of the County Court proceeding would be vastly facilitated by the applicant taking the trouble to listen to the judge when she is speaking; not to talk over her; and to respond to relevant issues at the appropriate times for him to respond.

22 Much of what the applicant complains about in this application occurred after the Recusal Ruling. Strictly speaking, those matters cannot affect or alter the correctness or otherwise of the Recusal Ruling. Moreover, if the Recusal Ruling is plainly correct, then there could be no error in the judge refusing to certify in respect of it.[8]

23 The matters about which the applicant makes complaint in this application, and which occurred after the Recusal Ruling was delivered by her Honour, were relied upon by the applicant in his second application to Judge Hampel that she recuse herself. Notwithstanding her Honour's dismissal of that second application in the Second Recusal Ruling, the applicant has not sought certification in respect of it. We should note, for completeness, that the time for any interlocutory appeal in respect of the Second Recusal Ruling has now expired.[9]

24 That said, we do not see any basis for legitimate complaint about the judge's conduct of the proceeding subsequent to her initial ruling (ie, the Recusal Ruling). More particularly, whether a judge permits an unrepresented person to sit at the Bar table (or requires an accused to conduct his case from the dock) is a matter wholly within the discretion of the judge.[10] Similarly, the issue of who is or is not required to wear a mask while the covid-19 virus is circulating within the community is entirely within the discretion of the presiding judge. As with issues of security, the authority of the trial judge within the courtroom is absolute.[11] The applicant's assertions otherwise are contrary to authority, and cannot be accepted.[12]

25 Plainly, if there is a difference in position between the prosecutor and an unrepresented accused, or different mask requirements are imposed in respect of them at trial, a trial judge could be expected to explain these differences to the jury in terms that ensure that the accused's position is protected and that the jury does not draw any adverse inference against the accused. That is not to say, however, that any such differences could be indicative of any bias, prejudice or discrimination on the part of the judge. And in the present case, such differences as have existed to date do not give any basis upon which this Court could or should intervene.

26 To the extent that the applicant contends that the judge was actually biased against him, that contention must be rejected. There is simply no basis for it.

27 In the absence of any suggestion of actual bias, the governing principle is that a judge is disqualified 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.[13] The level of knowledge and sophistication which a fair-minded observer hypothetically brings to the question is that of a lay person (not a lawyer), informed as to the relevant facts of the case and sufficiently knowledgeable and informed to be capable of bringing a rational and reasonable assessment to bear.[14] As was said by Kirby J in Johnson v Johnson:

[A fair-minded observer] would be taken to know commonplace things, such as the fact that adjudicators sometimes say, or do, things that they might later wish they had not, without necessarily disqualifying themselves from continuing to exercise their powers. [The observer] must also now be taken to have, at least in a very general way, some knowledge of the fact that an adjudicator may properly adopt reasonable efforts to confine proceedings within appropriate limits and to ensure that time is not wasted. [The observer] will also be aware of the strong professional pressures on adjudicators (reinforced by the facilities of appeal and review) to uphold traditions of integrity and impartiality. Acting reasonably, [the observer] would not reach a hasty conclusion based on the appearance evoked by an isolated episode of temper or remarks to the parties or their representatives, which was taken out of context. Finally, a reasonable member of the public is neither complacent nor unduly sensitive or suspicious.[15]

28 The applicant is unrepresented. As her Honour correctly observed, however, that does not give him 'a free pass to misbehave or treat the judge with disrespect or contempt'.[16] Where an unrepresented person acts or attempts to act in such a way, a trial judge must fairly and, if necessary, firmly deal with such behaviour.[17]

29 In appropriate circumstances, this will include (in a WebEx or remote hearing) muting a party's microphone. Her Honour took that step in this case, while at all times attempting to obtain the applicant's cooperation and his submissions on topics that were then relevantly in issue. The applicant's assertions of bias, prejudice and discrimination are without foundation.

31 There is no basis for transferring this proceeding from the County Court to the Supreme Court. In any event, an application to review a refusal to certify is not the occasion for the making of any such application.[18]

32 The application to review the judge's refusal to certify under s 295(3) of the Criminal Procedure Act 2009 is refused.

[1] DPP (Cth) v Tessa (Unreported, County Court of Victoria, Judge Hampel, 21 February 2022) ('Recusal Ruling').

[2] DPP (Cth) v Tessa (Unreported, County Court of Victoria, Judge Hampel, 1 March 2022) ('Certification Ruling').

[4] DPP (Cth) v Tessa [2022] VCC 260, [9] ('Second Recusal Ruling').

[6] And in particular paragraph [3] of the Recusal Ruling.

[7] This was the third of five days of hearing before her Honour (the others being 22 and 23 February, and 1 and 4 March 2022).

[8] See McDonald v DPP [2010] VSCA 45; (2010) 26 VR 242; Lindsey (a pseudonym) v The Queen [2021] VSCA 230, [55]-[57].

[9] See s 298(1)(a) of the Criminal Procedure Act 2009.

[10] R v Burke [1993] 1 Qd R 166, 174; R v Hoang [2007] VSCA 117; (2007) 16 VR 369, 381-2 [65]-[67]; R v Stephen [No 2] [2018] NSWSC 167, [8]-[16]. See also R v Baartman [No 2] (Unreported, Supreme Court of New South Wales, Dunford J, 23 October 1998); R v Benbrika [Ruling No 12] [2007] VSC 524; R v Baladjam [No 41] [2008] NSWSC 1462; R v Dirani [No 7] [2018] NSWSC 945.

[11] R v EJ Smith [1982] 2 NSWLR 608, 616-7 (Street CJ, Nagle CJ at CL and Maxwell J agreeing).

[12] See the cases referred to in n 10 and n 11.

[13] Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337, 344 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

[14] Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, 87-88; Johnson v Johnson (2000) 201 CLR 488, 507-9 [52]-[53].

[15] (2000) 201 CLR 488, 508-9 [53] (citations omitted).

[16] O'Connell v Western Australia [2012] WASCA 96, [109] ('O'Connell'); Doughty-Cowell v Kyriazis [2018] VSCA 216, [71] ('Doughty-Cowell').

[17] O'Connell [2012] WASCA 96, [109]; Doughty-Cowell [2018] VSCA 216, [71].

[18] See generally, ss 160 and 167(2) of the Criminal Procedure Act 2009.