Slavich v R [2012] NZCA 431 (21 September 2012)

Last Updated: 26 September 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA461/2007 [2012] NZCA 431

BETWEEN JOHN KENNETH SLAVICH Appellant

AND THE QUEEN Respondent

Court: O'Regan P, Harrison and White JJ

Counsel: Appellant in Person B C L Charmley for Respondent

Judgment: 21 September 2012 at 11 am On the papers

JUDGMENT OF THE COURT

The application for recalling this Court’s judgments delivered in R v Slavich [2009] NZCA 188 and Slavich v R [2011] NZCA 586 is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] John Slavich has applied for orders recalling two previous decisions of this Court. The first, delivered on 15 May 2009,[1] dismissed Mr Slavich’s appeal against his conviction in the High Court on two counts of forgery, two counts of using a document for a dishonest purpose, one count of uttering and one count of making a document without lawful authority. The second, delivered on 22 November 2011, declined to recall the first judgment.[2]
[2] Additionally, on 10 August 2009 the Supreme Court declined Mr Slavich’s application for leave to appeal against this Court’s first judgment[3] and on 13 September 2011 the Supreme Court refused to recall its earlier decision.[4]

Jurisdiction

[3] Mr Slavich must satisfy a high jurisdictional threshold to justify an order recalling one or both of this Court’s earlier judgments. The relevant principles are found in this Court’s decision in R v Smith as follows:[5]

... The Court has inherent power to revisit its decisions in exceptional circumstances when required by the interests of justice. Such power is part of the implied powers necessary for the Court to “maintain its character as a court of justice”. Recourse to the power to reopen must not undermine the general principle of finality. It is available only where a substantial miscarriage of justice would result if fundamental error in procedure is not corrected and where there is no alternative effective remedy reasonably available. Without such response, public confidence in the administration of justice would be undermined.

[4] As this Court noted Blick v R:[6]

This statement in Smith followed the Court’s review of the leading authorities in other jurisdictions.[7] Three factors assume relevance to Mr Blick’s application. One is that the Court’s power to reopen derives from an implicit power to suppress abuses of its process and control its own practice where a party through no fault of its own has been subjected to an unfair procedure. The second factor is that the circumstances necessary to justify a recall must be exceptional. The third factor is that the power is strictly circumscribed and does not allow a party a general right to reopen an appeal.

Decision

[5] Mr Slavich’s application and supporting submissions developed at length a detailed challenge to this Court’s treatment of his arguments about the admissibility of evidence given by a prosecution witness at trial, both in its first and recall judgments. In its recall judgment this Court answered what is in substance the same argument as that now presented by Mr Slavich on this application as follows:[8]

The confusion over the two versions of Mrs Calder’s evidence and the question of whether the transcript of her cross-examination came into evidence have been the subject of detailed investigation already. Nothing Mr Slavich has included in the current application leads us to have any concern about any of the decisions made in this case. There is nothing to suggest a miscarriage of justice may have occurred.

[6] In its recall decision this Court described Mr Slavich’s application as an abuse of the recall jurisdiction.[9] The same comment applies even more forcefully in answer to this application. Mr Slavich has not approached satisfaction of the high jurisdictional threshold required to justify an order recalling a substantive decision of this Court. We are satisfied that he is again attempting to revisit or reopen an issue which has been finally decided by an earlier decision of this Court and affirmed by the Supreme Court.

Result

[7] Mr Slavich’s application to recall the earlier judgments of this Court[10] is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Slavich [2009] NZCA 188.
[2] Slavich v R [2011] NZCA 586.
[3] Slavich v R [2009] NZSC 87.
[4] Slavich v R [2011] NZSC 103.
[5] R v Smith [2003] 3 NZLR 617 (CA) at 628.
[6] Blick v R [2012] NZCA 373 at [27].
[7] At [28]–[35].
[8] At [6].
[9] At [5].
[10] R v Slavich [2009] NZCA 188; Slavich v R [2011] NZCA 586.