| SUPREME COURT OF VICTORIA COURT OF APPEAL |
| S EAPCR 2023 0111 |
| SAMUEL TESSA | Applicant |
| v | |
| THE KING | Respondent |
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| JUDGES: | BOYCE, ORR and T FORREST JJA |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 May 2024 |
| DATE OF JUDGMENT: | 16 September 2024 |
| MEDIUM NEUTRAL CITATION: | [2024] VSCA 204 |
| JUDGMENT APPEALED FROM: | [2023] VCC 501 (Judge Hampel) |
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CRIMINAL LAW – Appeal – Conviction – Obtaining property by deception – Obtaining financial advantage by deception – Applicant falsely represented that he would provide or arrange insurance – Applicant knew he was not authorised or licenced – No inconsistencies or inadequacies in evidence.
CRIMINAL LAW – Appeal – Conviction – Applicant unrepresented – Applicant ignored and flouted trial judge’s rulings – Applicant’s cross-examination of witnesses, own evidence in re-examination and opening address terminated by judge – Applicant required by judge to participate in trial at times by audiovisual link from remote witness room – Applicant removed from courtroom and brief re-examination of one witness proceeded in his absence – Applicant taken by his behaviour to have waived his right to be present for witness’s re-examination.
CRIMINAL LAW – Appeal – Conviction – Whether County Court had jurisdiction to hear charges – Whether jury selection subject to tampering – Whether judge erred in excluding evidence of alleged corruption of regulator – Whether ‘question trail’ given to jury was permissible – No error or irregularity.
CRIMINAL LAW – Appeal – Sentence – Applicant alleged error in calculation of sentence – Applicant alleged factual errors in sentencing remarks – No error.
Criminal Procedure Act 2009 ss 223, 235, 246, 330; Evidence Act 2008 s 41; Evidence (Miscellaneous Provisions) Act 1958 s 42M.
CNY17 v Minister for Immigration and Border Protection (2019) 268 CLR 76; DPP v Smith [2023] VSCA 293; Eastman v The Queen (1997) 76 FCR 9; Johnson v Johnson (2000) 201 CLR 488; M v The Queen (1994) 181 CLR 487; O’Connell v Western Australia [2012] WASCA 96; Pell v The Queen (2020) 268 CLR 123; R v Vernell [1953] VLR 590; Tessa v DPP (Cth) [2022] VSCA 61.
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| Counsel | |||
| Applicant: | In person | ||
| Respondent: | Ms K Breckweg with Mr J Manning | ||
Solicitors | |||
| Applicant: | |||
| Respondent: | Mr S Bruckard, Solicitor for Public Prosecutions (Cth) | ||
BOYCE JA
ORR JA
T FORREST JA:
Introduction
The applicant was charged with five charges of obtaining property by deception[1] and two charges of obtaining a financial advantage by deception.[2]
[1]Contrary to s 81(1) of the Crimes Act 1958.
[2]Contrary to s 82(1) of the Crimes Act 1958.
The applicant had approached five single operator panel beating and automotive businesses in Dandenong, representing himself to be an insurance broker with a business named Review Financial Services. Review Financial Services was a business name owned by Eastern Profits Pty Ltd, a company of which the applicant was the sole director and a shareholder.
The applicant offered to provide each of the business operators with business insurance. The business insurance was said to…
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- AGLC
- Tessa v The King [2024] VSCA 204
- Case
- [2024] VSCA 204
- Decision Date
CaseChat Overview and Summary
The Court of Appeal found no jurisdictional errors in the trial court’s proceedings. It held that the County Court had the necessary jurisdiction to hear the charges and that there was no evidence of jury tampering or procedural errors in the trial. The court also rejected the applicant's claims that the judge had improperly excluded evidence of alleged corruption or given improper instructions to the jury. It found that the judge’s conduct was appropriate and that the instructions given to the jury were permissible under the law. The Court of Appeal further found no merit in the applicant’s arguments regarding the calculation of his sentence and the factual errors in the sentencing remarks.
The Court of Appeal upheld the conviction and sentence imposed by the County Court. The applicant’s appeal was dismissed in its entirety. The Court of Appeal found no errors in the trial proceedings and no basis for reducing the sentence. The conviction and sentence stood as imposed by the County Court.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In the second impugned passage, the judge said:The behaviour involved a cold call walk in to a small automotive business in an industrial estate, production by you of a business card bearing your name and the names of Review Financial Services and Eastern Profits Pty Ltd. On those cards and in your verbal introductions, you gave yourself, RFS and Eastern Profits Pty Ltd, various descriptions. For yourself, senior consultant, or senior adviser. For RFS, general broker, or general brokers. At one stage, you appended the letters DFP/AFPA to your name. You invented a brokers licence or registration number for Review Financial Services and appended that to its name on the business card.[69][69]Reasons, [8] (emphasis added). The applicant says the emphasised sentence is erroneous because the number appended to ‘Review Financial Services’ on his business card was not an invention — it was the business name registration number of Review Financial Services. There was no error in the judge saying that the applicant had invented a broker’s licence or registration number. The business cards he gave to Messrs Hanna, Naughten and Cakular read:General Brokers Reg.No’ 1239483H. It matters not that the number ‘1239483H’ happened to be the business name registration number of Review Financial Services. What matters is that by juxtaposing the number ‘1239483H’ and the words ‘General Brokers Reg.No’’, the business card was apt to convey that ‘1239483H’ was a general broker’s registration number. The applicant did not have a general broker’s registration number. As the judge said, he invented one. Messrs Atesh, Harrison, Naughten and Cakular each gave evidence that the applicant had represented that he was an insurance broker. Further, when the applicant was confronted in cross-examination with the business cards, he gave evidence that he believed he had been registered as a general broker since 2006:Under Review Financial it says, ‘General broker’s registration number’?---That’s right.And there’s a number there?---Yeah. Now, that number---Just wait for the question, please. I’m just going to ask you some questions. Do you say that at the time you gave this to Mr Naughten, you were registered as a general broker? Is that right? Yes or no?---I assumed that I was because I provided all the documents to ASIC. That’s right. And this number---When were you first registered as a general broker?---Sorry?In what year were you first registered as a general broker?---This is what I applied for in 2006 and that was my understanding. The document that the applicant produced at trial and asserted to be a copy of the AFSL application he had submitted to ASIC on 12 October 2006, also recorded that he intended to practice as an insurance broker. In his closing address, the applicant denied that he was a broker or that he had intended to be a broker. He attempted (unconvincingly) to explain away his use of the word ‘broker’ in the document that he said was his AFSL application by suggesting that the word ‘broker’ had a special meaning in Russian, namely, someone of senior standing in a particular profession.