Slavich v Orchard [2013] NZHC 2334 (6 September 2013)

Last Updated: 27 September 2013

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-019-5952 [2013] NZHC 2334

BETWEEN JOHN KENNETH SLAVICH Applicant

AND LESLIE RONALD ORCHARD Respondent

Hearing: 6 September 2013

Appearances: Applicant in person

H Roose for respondent

Judgment: 6 September 2013

(ORAL) JUDGMENT OF LANG J [on application for recall of decision]

JOHN KENNETH SLAVICH v LESLIE RONALD ORCHARD [2013] NZHC 2334 [6 September 2013]

[1] Mr Slavich has brought criminal proceedings against Mr Leslie Ronald

Orchard alleging that Mr Orchard is guilty of both perjury and blackmail.

[2] The allegations have their origin in a criminal proceeding in which Mr Slavich was accused of charges involving allegations of dishonesty. That proceeding was ultimately determined following a trial before Heath J sitting without a jury. Mr Orchard gave evidence at that trial for the Crown. Heath J accepted Mr Orchard’s evidence on material points, and convicted Mr Slavich. There followed a lengthy appeal process, and Mr Slavich advises me today that this may not yet have reached its final conclusion. Mr Slavich charged Mr Orchard with perjury on the basis that he had given false evidence at the trial before Heath J.

[3] Mr Orchard sought an order staying both the charges that Mr Slavich had brought against him. He contended that the charges amounted to an abuse of the Court’s process. In a decision released on 29 August 2013, Keane J upheld Mr Orchard’s argument in relation to the perjury charge but dismissed it in relation to the blackmail charge.[1] Mr Orchard is due to stand trial on that charge in this Court on 16 September 2013.

[4] Mr Slavich has now applied for an order recalling the judgment of Keane J to the extent that it relates to the perjury charge. Keane J is currently overseas, and is unable to deal with the application before the commencement of the trial. For that reason I have been required to deal with it even though I am in the unsatisfactory position of not having been present at the time when submissions were made before Keane J.

[5] Mr Slavich accepts that his application for recall is governed by the criteria referred to in Horowhenua County v Nash (No 2),[2] and subsequent cases such as Erwood v Maxted[3] and Faloon v Commissioner of Inland Revenue.[4] In those cases the courts have been anxious to emphasise that the discretion to recall needs to be

_{exercised with circumspection, and should not be viewed as a substitute for statutory}

rights of appeal. Mr Slavich has rights of appeal against Keane J’s judgment that he

remains free to exercise.

[6] Mr Slavich bases his application for recall on two broad grounds. First, he argues that Keane J failed to deal with an important argument that Mr Slavich had advanced in the course of his submissions. Secondly, he says he omitted to draw the Judge’s attention to the principles referred to by the Supreme Court in Commissioner of Inland Revenue v Redcliffe Forestry Venture Ltd.[5] I now deal with both of these issues.

Failure to deal with an important argument

[7] As I understand Mr Slavich’s submissions in respect of this ground, Keane J failed to properly consider an argument he advanced relating to the circumstances that arose in the criminal trial when Mr Orchard gave his evidence. Mr Slavich argues that he did not know what evidence Mr Orchard was going to give until such time as he gave it in the witness box. Mr Slavich has now sworn an affidavit confirming that fact. Apparently this unfortunate situation arose because the Crown did not supply a deposition or brief of Mr Orchard’s evidence to the defence in advance of the trial. As a result, both Mr Slavich and his trial counsel learned what Mr Orchard was going to say for the first time when he gave evidence.

[8] Mr Slavich goes on to argue that the trial tactics were determined by his trial counsel. His trial counsel made a radical mistake in not seeking to call a Mr McKelvy as a witness. Mr McKelvy could have provided Mr Slavich with material assistance, because he could have countered the allegations made by Mr Orchard in material respects. Mr Slavich says that this mistake by his counsel effectively deprived him of the opportunity of rebutting that evidence given by Mr Orchard at his trial.

[9] The relevance of these issues for present purposes is that Keane J referred in

_{his judgment to the events that occurred at Mr Slavich’s trial as follows:}[6]

[46] On his appeal to the Court of Appeal Mr Slavich did not go beyond his trial stance. He did not then contend that Mr McKelvy could have given evidence at his trial contradicting Mr Orchard. He only did that on his leave application to the Supreme Court. He did not press even then the Tuhoro possibility. Unsurprisingly, he was unsuccessful.

[47] By prosecuting Mr Orchard for perjury, Mr Slavich seeks a jury verdict inconsistent with Heath J’s verdicts at his own trial, and he seeks to achieve that inconsistency by electing now to give evidence himself and to call witnesses he elected not to call at his own trial. Furthermore, he seeks to put Mr Orchard’s credibility in issue on a simple contrast between what Mr Orchard said at his trial and what he, Mr McKelvy and perhaps Mr Tuhoro will now say. He will invite the jury to conclude that they must be telling the truth and that Mr Orchard must at his trial deliberately have given false evidence.

[48] But Mr Slavich was found by Heath J to be dishonest on a much wider array of evidence. If that is left out of account the contrast on which Mr Slavich seeks to rely will be unreal and misleading. The only way Mr Orchard will be able to counter Mr Slavich’s case is by calling the Crown evidence that Heath J found conclusive. This trial could, in that sense, involve a complete replay of the evidence at his own trial on the Booth counts.

[10] Mr Slavich argues that in reaching the above conclusions, Keane J ignored or failed to deal with his argument that he did not have an effective opportunity to call Mr McKelvy as a witness because he was bound by the tactics adopted by his trial counsel.

[11] I do not know how Mr Slavich advanced his submissions to Keane J on this point. It is possible that Keane J did not fully understand Mr Slavich’s argument. Importantly, however, the passages cited above make it clear that Keane J’s decision that the perjury charge should be stayed was based principally on his concern that the perjury charge would provide a further avenue to Mr Slavich to challenge the veracity of the evidence given by Mr Orchard at his trial. That in turn could undermine Heath J’s verdicts, which have now been upheld by the Court of Appeal and the Supreme Court. The Judge clearly considered that that could not be permitted to occur.

[12] Like Keane J, I consider that all of the issues arising out of the events that occurred during Mr Slavich’s criminal trial have now been the subject of decisions by the Supreme Court and Court of Appeal. His rights of appeal in respect of those issues are now spent, subject to the Supreme Court and Court of Appeal now

determining matters that Mr Slavich says are still before those courts. It is not open to Mr Slavich to revisit any of those issues in the present proceeding.

[13] In essence, Mr Slavich is asking me to revisit a fundamental aspect of Keane J’s reasoning. I do not consider that the manner in which Keane J decided this issue permits me to regard his alleged failure to deal with this issue as a matter of oversight such as would justify a recall of the judgment. Rather, it is a matter of such substance that it should properly be the subject of an appeal rather than an application for recall. That is particularly so when I am not the Judge who made the decision, and I cannot comment on the Judge’s reasoning process beyond the written words of his judgment.

[14] For that reason the first argument advanced by Mr Slavich cannot succeed.

The Redcliffe judgment

[15] The second argument faces obvious difficulties. In Redcliffe the Supreme Court held that it is possible to mount a challenge to a judgment obtained by fraud by issuing a fresh proceeding attacking the judgment specifically on that basis. The criminal proceeding against Mr Orchard is not, however, a proceeding that Mr Slavich has instituted to challenge Heath J’s verdict on the basis that it was obtained by fraud. Rather, it is a prosecution brought by Mr Slavich against Mr Orchard relating to the veracity of the evidence that Mr Orchard gave at the original trial.

[16] I have real doubts in any event as to whether the principles referred to in Redcliffe could be applied to a criminal verdict. It seems to me that the appropriate and only means of challenging a criminal verdict is through the criminal appeal process. If an appellant considers that a verdict has been procured by fraud, it would be open to him or her to seek to persuade appellate courts that a miscarriage of justice has occurred because of the fraud that was perpetrated. That would form a ground of appeal in its own right. Although the issue has not been properly argued, I therefore have grave doubts as to whether a court acting in its civil jurisdiction could ever set aside or cast doubts upon a criminal verdict in the same way that it might set aside a civil judgment obtained by fraud.

Result

[17] Both grounds advanced accordingly fail, and the application for recall is dismissed.

Lang J

Counsel:

H Roose, Taupo

Copy to: Applicant

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[1] _{Slavich v Orchard [2013] NZHC 2215.}

[2] _{Horowhenua County v Nash (No 2) [1968] NZLR 632.}
[3] _{Erwood v Maxted [2010] NZCA 93; (2010) 20 PRNZ 466 (CA).}

[4] Faloon v Commissioner of Inland Revenue (2006) 22 NZCC, 19,832 (HC).

[5] Commissioner of Inland Revenue v Redcliffe Foresty Venture Ltd [2012] NZSC 94; [2013] 1 _{NZLR 804.}

[6] Slavich v Orchard, above n 1.