Slavich v Police HC Hamilton CIV 2006-419-89 [2011] NZHC 2002 (13 December 2011)

Last Updated: 10 February 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CIV 2006-419-89}

BETWEEN JOHN KENNETH SLAVICH Applicant

AND NEW ZEALAND POLICE Respondent

Hearing: 13 December 2011

Counsel: Mr J K Slavich, in person, Applicant

P V Cornege for Respondent

Judgment: 13 December 2011

_{(ORAL) JUDGMENT OF HEATH J}

Solicitors:

Crown Solicitor, Hamilton

Copy to: Mr Slavich

SLAVICH V NEW ZEALAND POLICE HC HAM CIV 2006-419-89 13 December 2011

Application to recall verdicts

(a) The trial

[1] Mr Slavich has applied for an order recalling or setting aside verdicts that I gave on dishonesty charges, following a trial in 2006. Mr Slavich was found guilty of two counts of forgery, two of using a document with a dishonest purpose, one of uttering and one of making a document without lawful authority.[1] Full reasons for my verdict were given in a document handed down contemporaneously with pronouncement of the verdicts on 12 October 2006.[2]

(b) The appellate process

[2] Mr Slavich sought an extension of time to appeal against his conviction. No appeal was lodged against sentence. So, for the purposes of this decision, I do not refer further to that.

[3] The application for extension of time was filed on 3 September 2007. It was heard by the Court of Appeal on 17 April 2008. In a judgment given on 12 May

2008, an extension of time was granted.[3]

[4] The appeal was heard on 26 February 2009. Judgment was given on 15 May

2009.[4] The appeal was dismissed.

[5] One of the grounds on which the appeal was prosecuted was that I had not taken into account the “correct” evidence that arose out of the way in which it was necessary to deal with unsworn evidence to be given by a Ms Gibbs, on behalf of the prosecution. In dismissing the appeal, the Court of Appeal’s summary of this issue

_was:

[9] Before discussing the law, we need to describe briefly how it came to pass that Ms Gibbs’s evidence came in unsworn. Ms Gibbs was to be the last Crown witness. She was in the final stage of a pregnancy. There were complications of such a magnitude that her medical advisor said that she could not safely travel to Hamilton to give evidence; indeed, she was not even to travel across Auckland to a facility with a video-link. Neither side wanted an adjournment until Ms Gibbs had given birth and was able to travel again.

[10] In the end, counsel agreed how to deal with the matter. Ms Gibbs’s

evidence came in in two parts:

(a) a brief of evidence; and

(b) a transcript of a teleconference call.

[11] Both parts require further explanation. We deal first with the brief of evidence. Ms Gibbs had given a deposition statement, which was, of course, supplied to Mr Slavich. Prior to the High Court hearing, however, that deposition statement was expanded. We shall call that document Ms Gibbs’s “brief of evidence” to distinguish it from her deposition statement. It is clear that that brief of evidence somehow or other found its way on to the High Court file; there is also no doubt that a copy of it was given to Mr Slavich.

[12] The teleconference call (which we shall shortly describe in more detail) took place on 20 September 2006. It is apparent from the transcript of that teleconference call that counsel discovered that Ms Gibbs, following her marriage, was now calling herself Mrs Calder. It is also apparent from that transcript that Mr Slavich’s trial counsel, Mr McIvor, had Ms Gibbs’s brief of evidence. Immediately after the teleconference call, Mr Douch, the Crown Solicitor at Hamilton, who was leading for the Crown on this prosecution, made one change to Ms Gibbs’s brief of evidence. That was to change the first paragraph of the brief, so that, instead of reading “My full name is Carolyn Anne GIBBS”, it read:

My full name is Carolyn Anne CALDER. My maiden name was

Carolyn Anne Gibbs.

[13] Mr Douch then sent what we shall call the revised brief of evidence to Ms Gibbs for signature. The next day (21 September), Ms Gibbs signed the revised brief of evidence, which concluded with the following attestation:

This statement is true to the best of my knowledge and belief and I make this statement knowing that it might be admitted at a preliminary hearing, and that I could be prosecuted for making a statement that is known by me to be false and intended by me to mislead.

[14] Ms Gibbs returned the revised brief to Mr Douch. Mr Douch believes that he caused the original of the revised brief to be filed in the High Court. He thinks that because he now holds only a photocopy of the signed revised brief on his file. He annexed a copy of that photocopy to an affidavit.

[15] Unfortunately, no original of the revised brief appears on the court file. All the court file has is an unsigned copy of the original brief of evidence. In

the end, we do not think it matters. It is quite clear that Ms Gibbs’s brief of evidence did come into evidence on 21 September: the court transcript expressly refers to the brief of evidence as having been “read” and forming part of the evidence. There is no difference between the brief of evidence and the revised brief of evidence save for the inconsequential amendment to paragraph 1. It is clear that Ms Gibbs did sign the revised brief, although unclear whether the original signed copy has been mislaid in the High Court or in Mr Douch’s office.

[16] We now turn to the second part of Ms Gibbs’s evidence, namely the transcript of the teleconference call. We need to describe how that transcript came into existence. Counsel suggested a procedure by which Ms Gibbs’s evidence (as contained in her brief) could be tested. On 20 September, the judge provisionally approved it. The agreed procedure was in brief this. The court set up a conference call with Ms Gibbs. Present in court were counsel, Mr Slavich, the registrar, and Heath J’s associate – but not Heath J himself. Counsel then had the opportunity to ask Ms Gibbs questions, as if she were present in court and they were conducting a supplementary examination-in- chief and cross-examination. The question and answer session was recorded and later transcribed by Heath J’s associate. The transcript was then given to counsel – but not, at that stage, to Heath J. Counsel then checked the transcript. It was only at that point that counsel agreed that Ms Gibbs’s brief of evidence and the transcript would both go into evidence. Following that agreement, counsel gave Heath J the transcript, and at that point, on 21

September, Ms Gibbs’s brief of evidence and the transcript became part of the evidence of the trial.

[17] It is important to emphasise certain features. First, everything occurred with Mr Slavich’s consent. Indeed, he was keen to have the transcript in evidence, as he considered some of Ms Gibbs’s answers to be supportive of the defence he was running. Secondly, none of Ms Gibbs’s evidence became evidence in the trial until the entire process was completed and both sides had consented. Thirdly, there is no suggestion that Mr Slavich’s trial counsel exceeded his authority or was in any way incompetent in suggesting or agreeing to the procedure followed. Fourthly, at no stage did anyone request Ms Gibbs to be sworn. Fifthly, both sides, in their final submissions, relied on parts of Ms Gibbs’s evidence.

[6] Before me today, Mr Slavich has argued that the Court of Appeal did not consider appropriately the question whether I considered the “correct” evidence, in the form of a revised brief and amended transcript which had been signed by both Mr Slavich and his counsel, Mr McIvor. Rather, Mr Slavich contends that the Court of Appeal directed its attention to the question of process; namely, whether it was appropriate for me to receive evidence in the form in which it was tendered.

[7] Following the Court of Appeal’s dismissal of Mr Slavich’s appeal, he sought leave to appeal to the Supreme Court. Leave was declined on 10 August 2009.[5] The Supreme Court said:

[2] Mr Slavich now seeks to appeal to this Court raising many detailed but ultimately unpersuasive arguments designed to cast doubt on the Judge’s findings. Those findings have been confirmed by the Court of Appeal after hearing argument presented for the applicant by very experienced senior counsel. The applicant is, in essence, asking this Court to further review the facts. This is not our role in the absence of something suggesting that there may have been a miscarriage of justice, which we are satisfied has not occurred in this case.

[3] In particular, addressing a matter given special emphasis by the applicant, we are satisfied that it is not reasonably arguable that the Judge has fallen into error concerning the evidence of Mrs Calder.

[4] The applicant attempts to raise in this Court for the first time an argument that his trial counsel erred in failing to call as a defence witness the principal fraudster who may, it is suggested, have given evidence exculpatory of the applicant. Given the history of the offending, it may be thought unlikely that this would have been accepted by the jury. In any event, no confirmation of that person’s willingness to give such evidence has been provided.

[8] Subsequently, Mr Slavich applied to the Supreme Court to recall its decision to refuse leave. That application was dismissed on 13 September 2011.[6]

[9] An application to the Court of Appeal to recall its judgment was dismissed by that Court on 22 November 2011.[7]

(c) Jurisdiction

[10] Mr Slavich has brought the present application in order to have me review the situation afresh. He takes the view that, if his contentions were correct, the trial was a nullity and that I have jurisdiction to declare it so and to provide further relief.

[11] In my view, I do not have jurisdiction to consider the application. These were charges on which Mr Slavich was committed for trial in this Court. Ordinarily, they

_{would have been heard by a jury. They were heard before me sitting alone because}

Mr Slavich elected trial in that way. That said, the basis on which verdicts given by a Judge can be challenged are no different from those which relate to verdicts given by a jury. The way in which such verdicts can be challenged is by way of appeal to the Court of Appeal.[8]

[12] In this case, the right of appeal was exercised. Although Mr Slavich contends that the Court of Appeal did not address the relevant issue concerning the way in which information gained from Ms Gibbs (Ms Calder) was put before the Court, the issues were clearly considered by both the Court of Appeal and the Supreme Court.[9]

[13] The present application is, in reality, a collateral attack on the judgments of appellate courts which have considered my own decision. I do not consider that I have jurisdiction to entertain the application. For that reason, it is dismissed.

(d) Post-script

[14] I record that during the course of the hearing, Mr Slavich indicated that he may apply to His Excellency the Governor-General for a pardon, perhaps invoking s 406 of the Crimes Act 1961. That is his right. Nothing I have said in this decision should be taken as inhibiting that approach. From the discussion I have had with Mr Slavich, I trust that he now recognises that is a preferable course to continuing to make applications for recall to this and other courts.

The substituted sentence application

[15] A second application made by Mr Slavich seeks to “go at large” from the consequences of a judgment given by White J on 10 September 2010.[10] At that time, White J considered a Crown application to substitute a term of imprisonment for non-payment of a reparation order made when I sentenced Mr Slavich on 21

_{November 2006.}[11] _{The term of imprisonment actually imposed at sentence took}

_{account of the reparation ordered that has not been paid.}

[16] White J determined that a substituted sentence should be imposed. One of four and a half months imprisonment, with the warrant suspended for six months, was made. That gave time to Mr Slavich to arrange payment if he wished to do so.

[17] Mr Slavich appealed to the Court of Appeal against that decision. On 16

September 2011, the appeal was dismissed.[12] The Court of Appeal gave further time for compliance, suspending the warrant for imprisonment until 17 October 2011.

[18] Mr Slavich sought leave to appeal to the Supreme Court. On 2 November

2011, the Court dismissed an application for stay.[13] On 17 November 2011, the application for leave to appeal was dismissed.[14] In making that decision, the Supreme Court said:

[1] On 16 September 2011 the Court of Appeal dismissed an appeal by the applicant, Mr Slavich, against an order made by the High Court for his imprisonment for a term of four and a half months. The sentence was imposed on the applicant as a consequence of his failure to pay reparation of

$60,000 as part of a sentence imposed by the High Court following his conviction for offences involving dishonesty. The applicant applied to this

Court for leave to appeal against the Court of Appeal judgment on 14

October 2011.

[2] The Court of Appeal judgment suspended the warrant for imprisonment until 17 October 2011 and directed that, if the reparation remained unpaid at that date, the applicant was to surrender to the Hamilton Police Station on 18

October. He did not do so. Instead, on 25 October, he applied for a stay of

the Court of Appeal’s orders pending determination by this Court of his

application for leave to appeal.

[3] Having failed to surrender to the police, Mr Slavich is in an analogous position to a person in custody under a conviction who is appealing against the conviction or sentence. The general policy of the law in those circumstances is that the court must not grant bail unless satisfied it would be in the interests of justice to do so.

[4] We have considered the grounds of his application for leave to appeal, which assert that there are errors of law in the Court of Appeal judgment. There is no immediately apparent strength in them but that may change when his submissions on leave are received. We have also taken into account the length of the sentence, the length of time before the application for leave to appeal is likely to be determined, and the interests of those who wish to receive reparation. We have also considered the interests of his family and the public at large.

[5] Our conclusion is that neither these matters, nor the possibility that Mr Slavich might be successful in his leave application and in an ultimate appeal provide good reason, in terms of the interests of justice, for a further suspension of the operation of the sentence of imprisonment imposed by the High Court and upheld by the Court of Appeal. Nor does the inconvenience of Mr Slavich having to prepare leave submissions while in prison justify a stay. The application for a stay is dismissed and the warrant for imprisonment issued by the High Court should now be executed.

[6] As soon as Mr Slavich files submissions in support of his leave application, the Crown must respond to them within three working days.

[19] Mr Slavich has sought to amend his application so that he be permitted to go at large until determination of his application for a pardon, to which I have already referred. That could take some time to complete.

[20] In the meantime, the conviction stands. The decisions of both the Court of Appeal and the Supreme Court have upheld White J’s substituted sentence. In those circumstances, I do not consider that I should interfere with the order made.

[21] A warrant is currently outstanding for Mr Slavich’s arrest. That warrant, if executed, will commence the substituted imprisonment sentence of four and a half months imprisonment, which must now be served.

_{[22] Mr Slavich’s application “to go at large” is dismissed.}

P R Heath J

---

[1] _{R v Slavich (verdict) HC Hamilton CIV 2006-419-89, 12 October 2006.}
[2] _{R v Slavich (reasons) HC Hamilton CIV 2006-419-89, 12 October 2006.}
[3] _{R v Slavich [2008] NZCA 116.}
[4] R v Slavich [2009] NZCA 188.

[5] _{Slavich v R [2009] NZSC 87.}
[6] _{Slavich v R [2011] NZSC 103.}
[7] Slavich v R [2011] NZCA 586.
[8] _{Crimes Act 1961, s 385.}
[9] _{See paras [5] and [7] above.}
[10] _{R v Slavich HC Hamilton CRI 2006-419-89, 10 September 2010.}
[11] R v Slavich HC Hamilton CRI 2006-419-89, 21 November 2006.
[12] _{Slavich v R [2011] NZCA 457.}
[13] _{Slavich v R [2011] NZSC 131.}
[14] Slavich v R [2011] NZSC 139.