In the matter of applications by Lupco Slaveski (a person subject to a general litigation restraint order)

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2017 05049
S CI 2017 05086

IN THE MATTER of applications under

section 54 of the Vexatious Proceedings Act 2014 (Vic)

LUPCO SLAVESKI	Applicant
v
THE QUEEN	Respondent

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JUDGE:	JOHN DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	12 February 2018
CASE MAY BE CITED AS:	In the matter of applications by Lupco Slaveski (a person subject to a general litigation restraint order)
MEDIUM NEUTRAL CITATION:	[2018] VSC 39

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PRACTICE AND PROCEDURE – Application for leave to commence proceeding under s 54 of the Vexatious Proceedings Act 2014 (Vic) – Proposed application for extension of time in which to file leave to appeal against conviction and sentence and an application for bail – Whether application properly made to a judge in the Trial Division - Whether reasonable grounds for proposed proceeding and applications - Vexatious Proceedings Act 2014 (Vic) ss 3, 30, 32, 54, 55, 56.

VEXATIOUS LITIGANTS – Application of Vexatious Proceedings Act 2014 (Vic) to person declared vexatious litigant under s 21 of the Supreme Court Act 1986 (Vic) (repealed) - Vexatious Proceedings Act 2014 (Vic) s 91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	N/A	Marcevski Lawyers
For the Defendant	N/A	VGSO

HIS HONOUR:

The applications

On 25 February 2014, the court declared the applicant, Lupco Slaveski, to be a vexatious litigant under s 21 of the Supreme Court Act 1986 (Vic).[1] Following the repeal of that provision by the Vexatious Proceedings Act 2014 (Vic) (‘Act’), a declared vexatious litigant is taken to be subject to a general litigation restraint order under s 29 of the Act.[2]
[1]Order of the Hon. Justice Williams made 25 February 2014; see A-G (Victoria) v Slaveski [2014] VSC 48.
[2]Vexatious Proceedings Act 2014 (Vic), s 91.

On 12 August 2015, the court convicted Mr Slaveski of nine charges relating to the use of threatening, violent, abusive and offensive language in telephone calls, emails and in court to judicial officers, court employees, lawyers and their families. On 14 August 2015, King J sentenced him to a total effective sentence of 23 months imprisonment, with a non-parole period of 15 months. Mr Slaveski was outside of Australia at the time of both his conviction and sentencing. On 31 January 2017, on his return to Australia, he commenced to serve that sentence. He becomes eligible for parole on 30 April 2018.

By two applications made pursuant to r 83.04 on 13 and 14 December 2017, Mr Slaveski seeks leave under s 54 of the Act to commence a proceeding. The applications are:

(a) for leave to commence an application in the Court of Appeal for an extension of time in which to file an application for leave to appeal, and for leave to appeal against his conviction of 12 August 2014, and against the sentence imposed on 14 August 2014 (‘the extension of time application’);[3] and

(b) for leave to make an application for bail in the Court of Appeal (‘the bail application’).[4]

[3]S CI 2017 05049.

[4]S CI 2017 05086.

With the applications Mr Slaveski has filed supporting documentation as required by r 64.03, being the applications, affidavits, and written cases that he would rely on in the Court of Appeal should leave be granted.

On the initial return of these applications, J Forrest J ordered that notice be given pursuant to s 60(2) of the Act to the Attorney-General for the State of Victoria and to the proposed respondent and the proposed respondent party (‘the respondent’) has filed a submission.

Jurisdiction to determine the applications

There is a preliminary jurisdiction point. The respondent submitted that the applications should properly be made to the Court of Appeal and by a reply submission Mr Slaveski agreed with, and adopted, that submission.

Section 54 of the Act provides that the application for leave to commence a proceeding must be made to the court that would hear the proceeding to which the leave application relates. The parties contend that the Court of Appeal is the proper court to hear the s 54 application since it relates to an application for an extension of time to file a notice of application for leave to appeal against conviction and sentence. Section 313 of the Criminal Procedure Act2009 (Vic) empowers the Court of Appeal, or the Registrar of Criminal Appeals in circumstances defined by the Rules, to extend time for such a notice to be filed and/or served.

Further, s 274 of the Criminal Procedure Act states the entitlement of a convicted person to appeal to the Court of Appeal against conviction if given leave by that court to do so. Section 278 is to the same effect in respect of an appeal against sentence. Section 310 empowers a prisoner who applies to the Court of Appeal for leave to appeal to apply to that court for bail pending the appeal.

The preliminary submission is misconceived. A s 54 application is to be made to the Trial Division of the Court. Plainly, any application for an extension of time for applying for leave to appeal or for bail pending appeal must be heard by the Court of Appeal as the Criminal Procedure Act provides, but those applications are not presently before the court. Leave is first required to relieve the applicant of the prohibition under the general litigation restraint order to which he is subject.[5]
[5]Vexatious Proceedings Act 2014 (Vic), s 30(1)(b), 32(2); Order of Williams J made 25 February 2014 [2].

The Act applies to all civil and criminal proceedings in a Victorian court. The present application is in the civil jurisdiction of the court and is not governed by the Criminal Procedure Act. Properly construed, the Act does not direct that the s 54 application be made to the Court of Appeal. It requires that the application be made to the Victorian court that would hear the proceeding to which the leave application relates (s 54(2)). Section 3 of the Act defines ‘Victorian court’ to mean, relevantly, the Supreme Court.

The Court of Appeal is not a separate court from the Supreme Court. It is a division of the Supreme Court.[6] The jurisdiction and powers of the Court of Appeal may be found in Part 2, Division 2 of the Supreme Court Act1986 (Vic), and the form of appeals and applications to the Court of Appeal are prescribed by Order 64. Where by or under any act an application is authorised to be made to the court, it is usually commenced in the Trial Division[7] by Originating Motion under r 4.05. However, Order 83 governs procedure under the Act and prescribes that a s 54 application be in Form 83D or 83E. Neither the Act, the rule nor the form specifies that a s 54 application may be made to the Court of Appeal.
[6]Supreme Court Act1986 (Vic), s 3, definition of ‘Court of Appeal’.
[7]Also a defined term in s 3 of the Supreme Court Act1986 (Vic).

A civil application under an act is not an appeal or an application incidental to an appeal and is made to the Trial Division. I cannot discern in the Act or the Rules any legislative intention that a s 54 application may be made to the Court of Appeal. It is only once leave is granted that an application that would be required by the Criminal Procedure Act to be made to the Court of Appeal could be initiated.

The legislation

Section 55 provides that leave to commence a proceeding may be granted to a person subject to a general litigation restraint order by the Court if satisfied that:

(a) the proceeding is not a vexatious proceeding; and

(b) there are reasonable grounds for the proceeding.

Section 56 of the Act requires:

(1) A person subject to a litigation restraint order who makes an application for leave to proceed must disclose the following details to the Victorian court or tribunal in which the application is made—
(a)details of each application for leave to proceed made by the person;
(b)details of each application for leave to commence or continue a proceeding made by the person under section 21 of the Supreme Court Act 1986, as in force immediately before its repeal;
(c)details of each interlocutory application made or proceeding commenced or conducted by the person—
(a)that is a vexatious application or a vexatious proceeding; or
(b)which has been stayed or dismissed on the basis of being made, commenced or conducted without merit;

(d)an explanation as to how the application for leave to proceed is materially different to each application referred to in paragraph (a), (b) or (c) (if any);
(e)all other facts material to the application, whether in support of or adverse to the application, that are known to the person.

(2)A disclosure under subsection (1) must be made by affidavit unless the rules of the court or rules of the tribunal otherwise provide or the Victorian court or tribunal otherwise orders.

Material in support

The s 54 applications for leave are not supported by an affidavit of Mr Slaveski. Rather, affidavits purporting to comply with the requirements of s 56 of the Act have been sworn by the applicant’s instructing solicitor on information and belief.[8] No explanation has been given as to why Mr Slaveski has not provided an affidavit. The applicant bears the disclosure obligation and must do so by affidavit. Rule 43.03(1) requires that an affidavit be confined to the facts that the deponent can state of the deponent’s own knowledge. Neither the Act nor the Rules provide otherwise. The respondent has not taken issue with this irregularity and I may dispense with compliance.[9] Given the background circumstances, particularly the failure of the applicant to submit to the jurisdiction he seeks to invoke on prior occasions, that course is not attractive.
[8]Mr Nick Marcevski.
[9]Supreme Court (General Civil Procedure) Rules 2015 (Vic), Order 2.

The affidavits do not comply with the requirement of s 56(1)(c) of the Act as they do not disclose all proceedings the applicant has sought to commence after being declared vexatious.[10] Mr Marcevski simply asserts that Mr Slaveski ‘has too many applications that have been unmeritorious and stayed or dismissed to list’.[11] The respondent has not taken issue with these deficiencies. For reasons that will later appear and in the particular circumstances of this application, I will consider the application on this material despite its unsatisfactory state. Ordinarily, applicants and their legal representatives ought to exercise particular care to ensure compliance with the Act and the Rules on such applications.
[10]Enquiries have indicated that at least two additional applications have been made by the applicant following his declaration as a vexatious litigant, in proceedings S CI 2014 00035 and S CI 2012 05803.
[11]Affidavit of Nick Marcevski sworn 7 December 2017 [49] in S CI 2017 05049.

Other relevant applications

Two applications by Mr Slaveski are of particular relevance.

Mr Slaveski applied to the Court of Appeal for leave to appeal against conviction and sentence in September 2015. At that time he was out of Australia and there was an unexecuted warrant for his arrest. The court noted that it need not consider the further question that arose as to whether the applicant was, in any event, required to seek permission under the Act to bring a criminal appeal (or an application for leave to appeal). On 18 September 2015, the Court of appeal refused leave to appeal without adjudication on the merits,[12] and the High Court subsequently refused an application for special leave to appeal.[13]
[12]Slaveski v The Queen [2015] VSCA 264.
[13]Slaveski v The Queen [2016] HCASL 41.

The question reserved by the Court of Appeal is clearly answered by examining the language of the statute. The order of Williams J that Mr Slaveski not commence any legal proceeding in the Supreme Court, including the Court of Appeal is consistent with the power now expressed in s 30(1)(b) of the Act. Further, s 32 prescribes the effect of a general litigation restraint order by providing that a proceeding commenced in contravention of such an order be of no effect. ‘Proceeding’ is a defined term in

s 3 of the Act and includes an appeal to the Court of Appeal, whether civil or criminal, and any proceeding (including any interlocutory proceeding) taken in connection with, or incidental to, a proceeding. The proposed application in the Court of Appeal for an extension of time in which to file an application for leave to appeal, and for leave to appeal against conviction and sentence is a proceeding for which Mr Slaveski must obtain leave. The application for bail pending appeal would be incidental to an application for leave to appeal or an appeal once such a proceeding was permitted to be brought.

In June 2017, Mr Slaveski sought an extension of time of the 14 day period prescribed under r 49.02(3) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) in which to seek to set aside pursuant to r 49.02(2) the orders made by King J. In the course of the hearing the applicant conceded that leave to commence the proceeding was required under the Act, and that application was then made and considered simultaneously with the substantive relief sought. Riordan J refused to give leave to bring the proceeding and dismissed the summons.[14]
[14]R v Slaveski (Appln to set aside contempt orders) [2017] VSC 526.

Riordan J noted that the actual orders that Mr Slaveski sought were, relevantly –

(a) leave to resurrect proceeding S CI 2013 04426;

(b) leave to abridge or extend time as required;

(c) leave to enter an appearance after judgment under r 8.07;

(d) orders under r 49.02(2) setting aside the orders of King J on 12 August 2015 declaring the defendant is in contempt of the Supreme Court 'relating to charges 4-12’;

(e) orders under r 49.02(2) setting aside the orders of King J on 14 August 2015 committing the defendant to prison.

Mr Marcevski deposed that the present applications differed from these applications in the following ways:

(a) in respect of the application to the Court of Appeal, Mr Slaveski is now serving the sentence that is the subject of the present applications. Further, in so far as it is apparent from the judgment, the grounds of appeal to be now advanced are entirely different and have been settled by counsel instructed by solicitors; and

(b) in respect of the set aside application to Riordan J, Mr Slaveski relies on different grounds. However, Mr Marcevski notes that the proposed ground 3 in the present application ‘does cover some of the same ground as the set aside application’. He asserts that ‘[a]lthough not in the language of an appeal, Riordan J in effect accepted that King J had misdirected herself - by accepting the applicant’s submissions on mens rea - but found that it would not have made a difference. His Honour was not satisfied that Mr Slaveski could raise a defence on that basis on the evidence before him’.[15]

[15]Affidavit of Nick Marcevski sworn on 7 December 2017, [53].

Principles applying

As s 55 of the Act makes clear, the court must be satisfied about two matters. First, that the proceeding is not a vexatious proceeding; and, secondly, that there are reasonable grounds for the proceeding.

The respondent has not submitted that the proceeding is a vexatious proceeding or a vexatious application and bearing in mind the definitions in s 3 of the Act, that ‘concession’ is proper. The present issue is whether there are reasonable grounds for the proceeding.

The Criminal Procedure Act provides that an application for leave to appeal must be filed within 28 days after the day on which the person is sentenced.[16] Accordingly what needs to be determined is whether Mr Slaveski has reasonable grounds for an application for an extension of that time limit.
[16]Criminal Procedure Act 2009, ss 275, 279.

Recently, in Madafferi v The Queen, the Court of Appeal explained the approach to be taken when considering whether to grant an extension of time under s 313 of the Criminal Procedure Act:

The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice). The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal. Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case, the length of the delay — and the reasons for it — and the prospects of success should the extension be granted, are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise. Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension. The discretion must, as we have said, be exercised according to the individual facts of each case.[17]

[17][2017] VSCA 302 [11] (Priest, Hansen and Coghlan JJA); see also Jopar v R (2013) 44 VR 695, 707 [59]-[60] (Priest JA, Weinberg and Harper JJA agreeing).

In Jopar v R, the applicant made a deliberate decision to wait until after the expiration of the time limit for filing an appeal to ensure the applicant had been deported and was not placed in immigration detention for the duration of an appeal. Priest JA concluded:

No matter how worthy the motives might have been thought by some to have been, the fact remains that the decision not to file the application for leave to appeal was made in wilful defiance of the prescribed time limit. That, in my opinion, is sufficient reason for refusing the application for extension of time. Put another way, there are no “special and substantial reasons for extending the time”, and no “reasonably satisfactory account of the failure to comply with the statutory requirement [was] forthcoming”.[18]

[18]Jopar v R (2013) 44 VR 695, 711 [74] (Priest JA).

Scrutiny of the reasons for the delay in bringing the application for an extension of time begin with the affidavit of the applicant’s solicitor, Mr Marcevski, sworn on 27 November 2017. The Written Case proposed to accompany this application does not address the question of the extension of time, but it is relevant for assessment of the merits of the proposed appeal.

Delay

Mr Slaveski was ‘convicted’[19] on 12 August 2015 and sentenced to a total sentence of 23 months imprisonment with a 15 month non-parole period on 14 August 2015. The relevant period in which to file the application ended on 11 September 2015. This application was filed on 13 December 2017. The period of delay to be explained is 822 days.
[19]The court made declarations that Lupco Slaveski was in contempt of court.

Mr Marcevski asserted in his affidavit that there are two different periods of time to be considered:

(a) the period of delay ‘preceding the applicant’s treatment for his delusions’; and

(b) the period of delay from the applicant’s return to Australia and the making of the present applications.

Mr Slaveski received medical treatment following his imprisonment in Munich-Stadelheim prison in approximately mid-2016. The date on which he was imprisoned was not precisely identified. It appears he may have been arrested on 26 July 2016 and remained in custody from that time. He was transferred to an inpatient treatment facility. A medical report exhibited by Mr Marcevski suggests that following Mr Slaveski’s supervised withdrawal from benzodiazepine dependency his underlying mental illness was diagnosed as a delusional disorder. Following this diagnosis, Mr Slaveski was treated with the antipsychotic Risperidone, and on 14 December 2016, improvement in his psychiatric disorder was noted on examination. On 16 December 2016 by order of a Munich Court, Mr Slaveski was released.

I will treat the first period identified by Mr Marcevski as commencing on 11 September 2015 and ending on 16 December 2016.

On 10 January 2017, Mr Slaveski sent apology emails to various employees at the Supreme Court and the VGSO. By 27 January 2017, Mr Slaveski wanted to return to Australia and had contacted a police officer to facilitate this. He returned to Australia on 31 January 2017 and was taken into custody in execution of the warrant of imprisonment issued by King J.

On 1 February 2017, Mr Marcevski visited Mr Slaveski in prison and was instructed to appeal against conviction. It appears that from that time, the process of implementing those instructions was under the control of Mr Marcevski. Although there is no further reference to instructions from Mr Slaveski in the material, there was considerable further delay.

From 7 February 2017, Mr Marcevski attempted to obtain materials from the court file. There was significant difficulty in doing so, a matter about which Riordan J made findings.[20] Once those materials were obtained and reviewed, Mr Marcevski advised that, rather than seek leave to appeal, an application to set aside the orders made by King J should be made. This application was filed in 2 June 2017 and heard by Riordan J on 20 and 21 June 2017.[21] In the lead up to the hearing of that application, Mr Marcevski formed the view that the applicant was no longer capable of giving instructions due to the deterioration in the applicant’s mental health. One of the applicant’s daughters was subsequently appointed as litigation guardian.
[20]R v Slaveski (Appln to set aside contempt orders) [2017] VSC 526 [76].
[21]R v Slaveski (Appln to set aside contempt orders) [2017] VSC 526.

Riordan J dismissed the application on 5 September 2017.

The present applications were filed on 13 December 2017 (the extension of time application) and 14 December 2017 (the bail application). The applicant first sought to file these applications in the Court of Appeal Registry on or around 7 December 2017.

Mr Marcevski deposes that, on behalf of the applicant, he has ‘attempted as expeditiously as possible to comply with the relevant time limits having regard to obtaining all necessary material needed for drafting the appeal documentation, time for the advices of counsel, time for counsel to draft the appeal documentation and time to obtain appropriate instructions’. In fact, there have not been time limits to be complied with since 11 September 2015.

The second period was one in which, instructed by Mr Slaveski, from prison, to appeal, Mr Marcevski appears to have proceeded at a leisurely pace. It took four months to obtain copies of relevant documents and required the assistance of the court. I am not persuaded that the assistance of the court could not have been sought at a much earlier stage by a diligent solicitor whose client was in custody and seeking to be released. Then from 2 June until 5 September 2017 the matter was before Riordan J. Mr Slaveski’s representatives took from 5 September until 13 December 2017 to prepare this application and part of this delay was occasioned by the convenience of counsel and the psychiatrist.

Although it appears that this application could reasonably have been filed with 30 days of Mr Slaveski’s instructions being given, I accept that the subsequent delay is explained. The explanation, if somewhat disappointing, particularly for an applicant in custody, is not surprising. Mr Marcevski noted that Mr Slaveski constantly urged expedition and it may reasonably be supposed that the Court of Appeal may not be disposed to hold him responsible for his legal adviser’s delay in these circumstances.

Riordan J reached the like conclusion on the cognate question of the adequacy of Mr Slaveski’s explanation for the delay in applying to set aside the orders obtained in his absence. He said:[22]

In my opinion, the affidavit of the solicitor for Slaveski sworn 19 June 2017 adequately explains the delay in bringing the application from the time of Slaveski’s return to Australia on about 30 January 2017, as being the result of difficulties in obtaining relevant documentation.

[22]Ibid [76].

As to the first period of delay, Mr Slaveski relies on the reports of Dr Cidoni in which he opines that such delay was caused, and is explicable, by reference to Mr Slaveski’s undiagnosed mental illness. I will say more about the psychiatric reports before the court later when considering the merits of the proposed appeal against sentence. For present purposes, I am satisfied that it may reasonably be supposed that the Court of Appeal may accept that in the period from when Mr Slaveski left Australia (in September 2013) until his return in January 2017, he was suffering from an undiagnosed schizoaffective disorder that is capable, because it remained undiagnosed and so untreated until he was incarcerated in an inpatient facility in Munich by court order, of providing an acceptable explanation for his conduct in failing to submit to the jurisdiction and seek leave to appeal within time. Dr Cidoni’s opinion is that Mr Slaveski has responded positively to treatment. Until that response was obtained, Mr Slaveski’s schizoaffective disorder is capable of adequately and reasonably explaining his refusal to return to Australia, submit to the jurisdiction, and give instructions for an application to seek leave to appeal to be made.

The respondent contended that Mr Slaveski has not given any reason, nor any evidence, as to why this court should come to a different conclusion regarding the delay from the applicant’s conviction and sentence to the period when, to be generous, the applicant was released from the inpatient facility in Germany than the conclusion reached by Riordan J when considering whether to extend the 14 day period prescribed under r 49.02(3) of the Rules. I do not accept this submission.

His Honour found that Mr Slaveski ‘failed to give an adequate explanation for the delay in making this application’. His Honour stated:[23]
[23]Ibid [77]–[79].

However, there was no real attempt to explain the delay of over 16 months up until Slaveski’s return to Australia on about 30 January 2017. The Court was invited to infer that it was Slaveski’s paranoid delusions about the court system’s conspiracy to kill him that:
(a) caused him to abscond from Australia in September 2013; and
(b) to remain overseas until January 2017.

The evidence relied upon was as follows:
(a)The assertion in Slaveski’s emails that his decision to leave Australia was the result of the Court 7 incident.
(b)The history given to Dr Cidoni that his decision to leave Australia was the result of his paranoid fears precipitated by the Court 7 incident.
(c)The opinion of Dr Cidoni that the paranoid fears were real to Slaveski.
(d)The report of the German treating doctors noting the reduction in his paranoid symptoms, after treatment with anti-psychotic medication. In particular, it was submitted that this explained his preparedness to return to Australia in January 2017.

In my opinion, the state of the evidence about the explanation for both leaving and not returning to Australia, until January 2017, is unsatisfactory for the following reasons:
(a)Slaveski has a very long history of paranoid delusions about the police and the legal system preceding the Court 7 incident; and neither Dr Cidoni nor the German doctors specifically address whether it was the Court 7 incident, rather than a desire to avoid prosecution, which was the primary motivation for him leaving Australia after the commencement of the contempt proceeding; and not returning until January 2017.

Certainly, these reports would not cause me to doubt the specific finding of King J that Slaveski ‘has absented himself prior to the service of the charges and I am satisfied that he absented himself to avoid service and attendance at his trial’.
(b)The assertions in the emails of Slaveski, being that he left Australia because of his fears precipitated by the Court 7 incident, may be simply self-serving. The emails also indicate an understanding by Slaveski that an inability to serve him with Court documents may affect the ability to proceed against him. This may also be consistent with the care taken by Mrs Slaveska to state, in her written submissions at the hearing before King J that ‘I do not have any instructions from Mr Slaveski nor am I representing him in this matter’.
(c)Neither the German doctors nor Dr Cidoni state that the improvement in his symptoms, after the anti-psychotic treatment, enabled him to overcome his fears to return to Australia.
(d)Mr Slaveski has not filed any affidavit explaining why he left Australia and why he was able to return in January 2017. On the evidence, the principal motivations:
(i)for the decision to leave, may have been to avoid service and prosecution, as King J found; and

(ii) for the decision to return, may have been:
(A)his release from prison in Germany on or about 16 December 2016, after being incarcerated from 17 October 2016;
(B)his realisation that his absence had not prevented his conviction and sentencing for contempt; and
(C)his loneliness and the fact that he missed his children.

(e)Slaveski’s failure to file an affidavit in support of the application means that there is no adequate explanation for his failure to make an earlier application to set aside the conviction by King J in circumstances when, during his absence, applications were brought on his behalf for leave to appeal:
(i)to the Court of Appeal against the decision of Williams J declaring him a vexatious litigant;
(ii)to the Court of Appeal against the conviction by King J in this proceeding;
(iii)to the High Court against the Court of Appeal decision, referred to in (ii) above.

Since that application, Dr Cidoni has provided further reports that are in evidence on these applications. Although it may be open to reject Dr Cidoni’s opinion in favour of a conclusion that Mr Slaveski’s primary motivation was to avoid prosecution and the resulting sentence of imprisonment, I am not persuaded that the Court of Appeal must reach this conclusion by inferential reasoning. Dr Cidoni clearly stated that it was his opinion that Mr Slaveski’s conduct was –

strongly and directly related to his schitzoaffective disorder, and not the product of a disordered personality or motivated by some other means.[24]

[24]Forensic Psychiatric Report, 25 February 2017, p 9, Opinion point 10; see Affidavit of Nick Marcevski sworn 27 November 2017 Exhibit NM2.

In relation to the period in 2014 before he left Australia, Dr Cidoni opined that Mr Slaveski –

was under a delusional belief that the Victoria police, members of court staff, members of the judiciary and prosecutors were in a conspiracy to kill him or his family, steal his property and/or destroy his livelihood.[25]

If this diagnosis be accepted, and bearing in mind that the nature of the persecutory delusions are experienced as real by Mr Slaveski who is unable to question them, then the question of what factors motivated Mr Slaveski’s conduct in 2015 becomes complex and is likely to be regarded as properly assisted by expert psychiatric opinion to the exclusion of inferential reasoning as employed by Riordan J. For that reason, with respect, I am not persuaded that the first reason proffered by his Honour is sufficiently compelling to conclude that the Court of Appeal could not prefer Dr Cidoni’s opinion. In a later report, Dr Cidoni stated that Mr Slaveski’s decision not to return to Australia was significantly affected by his delusional beliefs, which rendered him incapable of making a rational decision.

[25]Supplementary Forensic Psychiatric Report, 23 March 2017, page 8, Opinion point 5; see Affidavit of Nick Marcevski sworn 27 November 2017 Exhibit NM2.

Further, with respect, I am unpersuaded by Riordan J’s statement in R v Slaveski (Appln to set aside contempt orders) that Dr Cidoni’s report would not cause him to doubt the specific finding of King J that Slaveski ‘has absented himself prior to the service of the charges and I am satisfied that he absented himself to avoid service and attendance at his trial’.[26] King J’s ruling is set out in full.[27] Of course, King J did not have the benefit of Dr Cidoni’s opinion and it appears that the factual matters to which she refers are not inconsistent with the factual basis on which Dr Cidoni has formed his diagnosis.
[26]R v Slaveski (Appln to set aside contempt orders) [2017] VSC 526 [79(a)].
[27]Ibid [16].

For like reasons, Riordan J’s conclusion that Mr Slaveski’s assertions that he left Australia because of his fears precipitated by the Court 7 incident may be simply self-serving, strikes me as a proposition to be put to Dr Cidoni. On my reading of his reports, particularly what he said about the nature of Mr Slaveski’s delusions, Dr Cidoni might well reject that proposition. It is a conclusion of fact that I cannot comfortably accept the Court of Appeal will make.

Riordan J’s third reason is contradicted by Dr Cidoni’s later report of 1 November 2017.[28] His Honour’s conclusion sits uneasily with the fact that Mr Slaveski became an impatient in Germany on 17 October 2016 and was weaned off benzodiazepines before being diagnosed with a delusional disorder and prescribed Risperidone which proved to be effective, in the assessment of the German psychiatrists. The German court accepted that assessment and directed that Mr Slaveski be released into the community. As noted above, his conduct after release was consistent with some insight into his illness, including active steps to face his circumstances by returning to Australia to serve his sentence. The inference is open that Risperidone treatment did facilitate a voluntary decision to return to Australia.
[28]Affidavit of Nick Marcevski sworn 13 December 2017, Exhibit NM7.

For present purposes, I am satisfied that it is reasonably arguable that Mr Slaveski can identify an explanation for the substantial period of delay in applying to the court for an extension of the time to seek leave to appeal. How that explanation is evaluated by the Court of Appeal is a matter for it. Mr Slaveski’s undiagnosed schizoaffective disorder is capable of dispelling any notion that, by leaving Australia in the circumstances and remaining overseas to avoid the trial and the consequent sentence of imprisonment, the decision not to file a timely application for leave to appeal was made in wilful defiance of the prescribed time limit.

Put another way, it is open to the court to conclude that Mr Slaveski offers a reasonably satisfactory account of his failure to comply with the statutory requirement and that there is, in the circumstances of the diagnosis and treatment of his condition, special and substantial reasons for extending the time. That is one issue with which the Court of Appeal will be concerned. I now turn to the other issue, whether there is any merit in the proposed appeal.

Merits
Appeal against conviction

Mr Slaveski submitted that his grounds of appeal are reasonably arguable grounds. They are:

(a) the learned trial judge erred in deciding to proceed both to trial and sentence in the absence of the accused, and alternatively that in light of the additional evidence those decisions otherwise led to a substantial miscarriage of justice;

(b) the judge erred in granting leave to add charges (particularising both her Honour’s sister and the prosecuting instructor as the recipients of threatening emails) which related to the proceeding themselves, giving rise to an apprehension of bias;

(c) the learned trial judge misdirected herself in deciding that the contempts before her were absolute liability offences; and

(d) in light of the conclusions of Dr Cidoni, this court should impose a different sentence.

I am not persuaded that there is any merit in the grounds that support the application for leave to appeal against conviction, but I have concluded that ground 4, supporting the proposed appeal against sentence, is reasonably arguable.

Mr Slaveski will be required to satisfy the Court of Appeal that, on the grounds alleged, it is reasonably arguable that, relevantly:[29]

(b)as the result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or

(c) for any other reason there has been a substantial miscarriage of justice.

[29]Criminal Procedure Act 2009 (Vic) s 276.

Ground 1 is not reasonably arguable.

In relation to this ground, the relevant ruling made by King J on 17 June 2014 that is challenged as erroneous was as follows:[30]
[30]Extracted from R v Slaveski (Appln to set aside contempt orders) [2017] VSC 526.

Upon the application of the Attorney-General I have determined that I should proceed to hear the contempt charges laid against Lupco Slaveski, despite his absence from the jurisdiction. The respondent is absent and unrepresented in these proceedings and accordingly, I have a duty and an obligation to raise and consider all arguments, that may have been argued or submitted, as if he had had the benefit of counsel.
I will provide at this stage brief reasons and I may provide further expanded reasons at the time of judgment in respect of the contempt charges brought against him, if I consider it necessary.
The proceedings were commenced by originating motion on 23 August 2013 and related to alleged contempts of the Supreme Court, by way of provision of bank cheques to nominated judges, and the CEO of the court on 4 July 2012, a telephone discussion with an associate to an Associate Justice of the court on 31 August 2012.
That process, commencing over one year subsequent to the first alleged contempts. Further subsequent alleged contempts were charged against the respondent between the time of issue of the first originating motion and date for hearing, today. Those contempts are alleged to have occurred on 5 and 7 October 2013, each relating to an email sent to a legal officer of the Victorian Government Solicitor’s Office, an email on 15 September 2013, two separate emails on 5 February 2014, a further email on 25 February 2014 and finally on 11 March 2014, all directed to the Supreme Court to different persons within the court.
The Attorney-General made an application for substituted service in relation to the service of the first unamended originating motion, as it was submitted that the respondent had absented himself from the jurisdiction or had made himself unavailable for service. Evidence was placed before me and I determined that I was satisfied, at that stage, that the respondent was avoiding service and directed that substituted service would be sufficient.
Since that time, the respondent has sent to the court and various other places, a series of emails relating to these contempt charges. Such, that I am satisfied beyond reasonable doubt that he is fully cognisant of these charges, together with the affidavits and exhibits filed and served in support of those charges.
On each occasion the matter has come to court, the respondent’s wife and daughter have been present, and although not a party to the proceedings, Mrs Slaveska has been permitted to inform the court of matters that she thought may be of assistance to the respondent. Her husband’s subsequent emails demonstrate a continued ongoing discussions with Mrs Slaveska and knowledge of what has occurred in the proceedings, often that same day.
The respondent has consistently, through his emails, addressed to my associate, indicated that he would not return to the jurisdiction, or attend the proceedings unless certain demands of his were met. Most particularly, including a guarantee that he would not be harmed in the court. Despite assurances that he would be safe in court, the respondent has demanded that I guarantee his safety with my life. As has been explained to his wife and recorded in the transcript, which was available to him and his wife, he would be safe in any court room of this court. It is not the function of any judge of this court to give personal guarantees, to try and ensure the attendance of a respondent.

Ms Forsyth, on behalf of the Attorney-General, has made submissions that this trial should continue, despite the absence of the respondent from proceedings and I do uphold the submission she has made. Whilst contempt is commenced by and follows the rules of civil procedure, it is an offence of a criminal nature, particularly where, as is the case here, the penalty sought to be imposed is criminal in nature, being a fine and/or imprisonment. What flows from that is the principles [require that the] trial should be conducted in the presence of the charged person. It is an important principle and not lightly put to one side, but the courts have determined that there may be exceptions to that rule. The principle exists to assist an accused person, to ensure that they have a full and complete opportunity to hear and know the allegations against them, as well as have the ability to answer any particular charge, challenge a piece of evidence, be heard in their own defence and make any submissions that may be necessary, on the appropriate penalty be imposed, if convicted for the offence. It is a most important safeguard against the State behaving in an oppressive manner or breaching the human rights of its citizens.
One of the most important bases therefore, for the exercising of the discretion to allow the proceedings to be heard in the absence of the accused, is if the accused has voluntarily waived his right to be present at the hearing.
The court, comprising Maxwell P and Buchanan and Weinberg JJA, cited with approval the statement of Lander J in R v Jones:
[I]f the court is satisfied that the accused has waived his or her right to be present during the trial and that the trial may proceed without any injustice to that person, except injustice caused by the accused’s own waiver, then the court may proceed with the accused’s trial.

They noted that any discretion to proceed in the absence of an accused, however, should be exercised sparingly. And that, quoting again from Lander J:
There must be circumstances where a trial can proceed in the absence of the accused. Otherwise any accused, who was on bail, and who believed at some time during the trial that his or her prospect of an acquittal was remote, could absent himself or herself from the trial and thereby force a new trial. That cannot be right. If that was a principle then it would be necessary to revoke the bail of all accused people at the outset of their trial.

In this case, the respondent has absented himself prior to the service of the charges and I am satisfied that he absented himself to avoid service and attendance at his trial, departing this country in September of 2013. He has indicated many times in the exhibits attached to the various affidavits that he is living overseas, will not return to Australia for the trial and has made statements indicating he would like to participate in this trial, but will not return to the country to enable that to occur.
He has, via numerous emails to different persons, stated variously he would go to a German court, near to, but not inside an Australian embassy somewhere in Europe, he would involve Skype and/or a video link. It is not even known at this point in what country the respondent is living, or what if any, facilities are available. Despite the protestations of the respondent, there has been, in my view, no serious attempt to put forward any alternative means of hearing these charges.
The applicant has submitted that before I proceed with a hearing in the absence of the respondent, I should ensure that I am satisfied of a number of matters, which were determined and referred to by Lander J in R v Jones and applied by [Pembroke] J in the decision of Ronowska v Kus [No 2] being:
An assessment of the strength of the Crown case and the nature of the Crown case, the defence in so far as it has been disclosed, the length of time over which the case has run and will run, the prejudice that the accused might suffer, the risk of a miscarriage of justice, the inconvenience to the victims and the witnesses, and the impact upon the administration of justice.

In relation to those matters, I am satisfied that at least some of the Crown cases are strong cases and the nature of the contempts, if they be proved beyond reasonable doubt, have been increasing in seriousness. Moving, it is alleged, from perceptions of bribery and corruption, to threats of physical harm and even death being inflicted upon various legal and judicial officers.
The reason the case may be described as strong is that it is in almost every case the written words of the respondent that comprise the particulars of the charges of contempt.
It is difficult to see under those circumstances what defence would be raised and available to the respondent, were he present to contest these matters. The trial itself would not be of great duration. The inconvenience to the victims and witnesses is not, in my view, of any particular significance.
The two important issues are the impact upon the administration of justice and equally the prejudice that the respondent might suffer, which is tied in with the issue of the risk of a miscarriage of justice.
The proceedings in these matters were not instigated until August of 2013, despite the initial contempts being alleged to have occurred in early July of 2012. Contempts are matters that should be dealt with swiftly, particularly when they relate to allegations of the type and nature alleged in this case. The contempts have allegedly escalated in severity, and prompt early condemnation of the initial contempts, if they be proved, may well have prevented such ongoing behaviour. Whilst I am concerned that the initial contempts were not dealt with in the most expeditious of manners, the nature of the subsequent contempts makes it important that there be a determination of whether or not the respondent has committed such serious contempts of the court, and if not, to be permitted to get on with his own life, but if convicted, to have made clear to him the seriousness with which a court may view such behaviour.
In terms of the issue of the impact of these alleged contempts upon the administration of justice, there is no doubt that it is important to the court, the judicial officers, the legal officers and other members of staff of the court, as well as the public confidence in the court and its administration, that if contempts are committed upon them, that they be punished appropriately and preferably swiftly. Equally it is just as important that if all or some of this behaviour does not amount to a contempt of court, that the respondent and all others involved in the courts equally understand that.
In terms of the possible defences that the respondent may raise, as far as I can understand from the various emails sent and exhibited within the material, he appears to be of the view that he is justified in all statements made and actions taken, because he believes the court has been conspiring with members of its staff and others, to either kill him or cause him harm. I am unable to see a defence to the action or words contained in his beliefs, but I will when examining the evidence, keep in mind that it is his view, and I will when examining the evidence keep in mind that it is his view and will examine the elements of the offence, keeping that knowledge at the forefront of my deliberations.
I have considered the aspect of prejudice he might suffer, and have raised my concerns with Ms Forsyth. They are twofold. I have medical assessments that I have read that indicate he appears, at least in 2013 and possibly 2012, to have been suffering from mental health conditions, possibly such as post-traumatic stress disorder, or bipolar disorder, or a narcissistic personality disorder. None of the material was totally definitive, and of course it is now aged.
The emails which have been exhibited have also caused me concern, in that they do, on the face of them, indicate that the respondent may well have mental health issues.
Further both the respondent and his wife say that he has mental health problems, without being entirely specific. The first concern this raised with me was: would he have been fit to run his trial, if he had been present in court, or would he have a potential to possibly be found unfit.
He was examined by Dr Danny Sullivan, in respect of that issue, on the occasion of his last contempt charges before the court, heard by Whelan J, as he then was. The report by Dr Sullivan addresses the criteria for unfitness to plead, and details why he was, in the opinion of that psychiatrist, fit to plead. He found that the respondent interprets a range of mundane events as self-directed, and that there is a persecutory and grandiose flavour to many of his statements and behaviours, that his beliefs were not amenable to argument, and that he has become obsessed with seeking vindication through the courts for a range of matters. He said, he also exhibited more sustained underlying personality vulnerabilities, with paranoid and narcissistic elements.
He found that the respondent’s view was that preceding events justified his behaviour, and that consequently he would plead not guilty. He found that the respondent was able to clearly explain the nature of the charges, capable of entering a plea, and that he had a clear understanding of the legal issues associated with the matters. He found that he had a clear factual appreciation of the evidence forming the basis of the charges, and despite his claim as to the veracity of the videotape recording, he didn’t dispute the substantial nature of the evidence which was an account of that conduct. He said, however that the respondent felt he was justified, and that he in fact was the victim of an unwarranted assault. He believed the respondent would be able to follow the course of the trial and instruct his legal advisers, even though he may not develop a trusting relationship with them.
It is apparent to me that the situation is remarkably similar in the cases before me. Whilst I raise the matter as it was something that may have been raised by the respondent’s practitioner if he had instructed any to appear, I am also now satisfied that whilst his behaviour can be described as rude, difficult and even possibly paranoid, there is nothing within his behaviour at this time that gives rise to a concern that he will be unfit, or would have been unfit to stand his trial.
I equally have nothing to suggest that there was any mental impairment defence that would be open to him on the material before me.
My second concern relates to the issue of sentence, if we ever arrive at that point, as the issue of his mental health may in my view have a significant bearing on the disposition that the court may think is appropriate. The case of Verdins may become a matter of some significance. I would propose accordingly to hear the charges and if there is a conviction upon any of the charges, then I would provide the respondent with another opportunity to return to Australia to provide any material for the consideration of the appropriate sentence. If that does not occur, I would then hear a further application to proceed to sentencing in his absence.6

Mr Slaveski contended that to hear the trial and conduct a plea hearing in his absence, the trial judge was required to find both that:[31]

(a) he had waived his right to presence; and

(b) the Court should exercise its discretion to proceed in his absence.

[31]Citing Taupati v The Queen [2017] VSCA 106 [20].

Mr Slaveski will submit that the primary judge erred by inferring his waiver to presence, and in exercising the discretion to proceed, at both the liability hearing and the sentencing hearing. The primary judge erred in finding waiver of the right to attend at the hearing for the following reasons:

(a) the applicant had a ‘good excuse or explanation’ for his absence,[32] namely his mistaken belief that he may be killed by conspirators upon his return to Australia;

(b) her Honour’s finding that the applicant left the country ‘to avoid service’ was inconsistent with an earlier conclusion: ‘I don’t think he’s absconded but he has left the country’;

(c) the applicant’s attempts to appear via video-link demonstrated an intention to exercise rather than waive the right.

[32]R v Jones (1998) 72 SASR 281, 295.

In addition to these errors, Mr Slaveski submitted the judge erred in finding he had waived his right to presence at the plea hearing as voluntary absence could not be inferred from one day’s notice of the proceeding. To establish the implied waiver of the right, the conduct of the applicant must have been inconsistent with the maintenance of the right - namely, knowing where and when to attend, to choose not to do so. Mr Slaveski relied on the judge’s earlier indication when ruling that the liability hearing would go ahead that, should she be required to proceed to sentence, she would provide a further opportunity for Mr Slaveski to return to Australia, or if this did not occur, to hear a further application to proceed to sentencing in his absence. The applicant submits that no further opportunity was given, following conviction on 12 August 2015, when the proceeding was adjourned until 10:30am the next day. The applicant submits that it would not have been possible for the applicant to return to the jurisdiction in this time, and therefore her Honour erred by inferring voluntary absence.

Mr Slaveski will submit the judge also erred in exercising her discretion to proceed to trial in his absence, contending that the discretion should be exercised sparingly, and alternatives to proceeding in the absence of an accused should be preferred when available. The judge should have considered an adjournment, said to be preferable because:

(a) there was no jury to be discharged;

(b) significant prejudice would not be caused to the prosecution as the evidence was almost entirely documentary; and

(c) it was conceded by the prosecution that ‘almost all of the delay up until now has been as a result of adding new charges’.

Mr Slaveski will contend that once the judge became aware he was seeking to brief counsel from overseas, the proper exercise of her discretion was adjournment for a reasonable period of time.

The final error asserted under this ground is that the judge erred in proceeding to sentence Mr Slaveski in his absence because the judge recognised that Verdins may be a ‘very significant matter’ but that she lacked the necessary materials to evaluate its significance. Mr Slaveski will submit that in those circumstances her Honour should not have proceeded to sentence. However, this alleged error must be separated from consideration of whether the judge erred in proceeding with the liability hearing in Mr Slaveski’s absence.

The respondent contended that the weight of authority supports the existence of a discretion to hear a matter in the absence of the accused,[33] and on the evidence before the court the judge appropriately exercised that discretion. In particular the respondent will contend:

(a) the evidence before the judge demonstrated that Mr Slaveski was fully aware of the proceeding and the charges brought against him and voluntarily absented himself from the proceeding;

(b) there was no evidence that any period of adjournment would have resulted in his attendance.

[33]Citing R v Jones (1998) 72 SASR 281.

Mr Slaveski does not identify any error in the primary judge’s exercise of the discretion to proceed with the hearing in his absence, nor argued that the exercise of the discretion was unreasonable or plainly unjust. Rather, the applicant has asserted that an alternative approach would have been preferable or more appropriate. This is not a recognised basis upon which the exercise of a discretion can be impugned.[34]
[34]House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ)

It is clear from the evidence on this application that not only was there no evidence any period of adjournment would have resulted in Mr Slaveski's attendance but Dr Cidoni’s opinion was that his delusions were actively operational creating a reality for him in which he would not contemplate returning to Australia until January 2017. Mr Slaveski cannot suggest that it was open to the judge to take into account any possibility that he would return if the proceeding was adjourned or that any sufficiently developed proposal for a remote appearance ought to have been taken into account. Mr Slaveski’s demands for a guarantee of his safety if he returned and his suggestions that he might appear by video link, but not at an Australian embassy were not relevant considerations. Nor is it relevant that these demands might be re-interpreted in the light of Dr Cidoni’s reports, of which the judge could not have been informed.

The judge based her conclusions in the communications to the court directly from Mr Slaveski and indirectly through others purporting to appear on his behalf. No error can be shown in that approach.

The materials now before the court show that Dr Cidoni was invited to opine on whether Mr Slaveski was fit to stand trial in 2015 and expressed with considerable reservation that –

(a) he was likely to understand the nature of the charge, enter a plea, and understand the nature of the trial;

(b) his disturbed mental state would have impaired his ability to follow the course of the trial, understand the effect of the evidence and give instructions.

His tentative opinion expressed in late 2017 that Mr Slaveski might not have been fit to stand trial cannot assist him because it was reached retrospectively on material that was not before the primary judge and cannot demonstrate error on the part of the primary judge at the relevant time.

The judge properly considered the issue of fitness to plead on the evidence that was before her that included a report from Dr Danny Sullivan presented to an earlier contempt hearing before Whelan J (as he then was). It was open to the primary judge to conclude that he did understand the nature of the charges, could enter a plea, and did understand the nature and consequences of the trial. Mr Slaveski does not now point to any evidence or other material that gives rise to a concern that he would have been unfit to stand his trial or that suggested to the primary judge that there was any mental impairment defence that would be open to him.

Mr Slaveski's argument as to inconsistent findings made by the trial judge is misconceived. Her Honour made a ruling, following submissions. This cannot be compared to an isolated remark - ‘I don’t think he’s absconded but he has left the country’ - extracted from the transcript of argument without context in order to contend for inconsistent rulings. In the context of apprehended bias, in Johnson v Johnson, the plurality observed:

Judges, at trial or appellate level, who, in exchanges with counsel express tentative views which reflect a certain tendency of mind, are not on that account alone to be taken to indicate prejudgment. Judges are not expected to wait until the end of a case before they start thinking of the issues, or to sit mute while evidence is advanced and arguments are presented. On the contrary, they will often form tentative opinions on matters in issue, and counsel are usually assisted by hearing those opinions, and being given an opportunity to deal with them.[35]

[35](2000) 201 CLR 488, 493 [13].

I will return to the asserted error in proceeding to sentence Mr Slaveski in his absence later in these reasons when dealing with ground 4. I am not persuaded that Mr Slaveski can show error in the primary judge’s approach on the basis articulated in support of ground 1.

Ground 2 is not reasonably arguable.

Mr Slaveski contended that support for the allegation that a reasonable person might reasonably apprehend that the primary judge might not have brought an impartial mind to the proceeding, was found in the following facts. Her Honour:

a. gave leave to add charges 6-7 and 9-12 despite those charges:
i relating to Her Honour’s own proceeding;
ii.particularizing the judge’s sister as a recipient of abusive and threatening emails in charges 9-12;
iii.particularizing the prosecuting instructor as being the recipient of abusive and threatening emails in charges 6 and 7;

b.refused requests by the applicant to appear by video-link, variously deciding it was unavailable and later that the applicant’s requests were not a ‘serious attempt’;
c.despite earlier stating that the applicant’s mental health was a ‘real issue in this case’, decided there was no real or substantial risk that the applicant was unfit to stand trial, and in so doing relied heavily upon a report of Danny Sullivan of some three years earlier;
d.refused an adjournment for counsel, deciding the applicant’s attempts would be futile;
e.without a proper contradictor, gave little apparent consideration to cases not relied upon by the prosecutor in deciding the offence carried absolute liability;
f.mistakenly thought she had previously decided that the Mr Slaveski had left the country in order to avoid service, where previously to her sister receiving nasty emails, Her Honour had determined he had not;
g.found the accused guilty of all of the charges involving threats to persons – being those of a nature similar to those involving her sister;
h.In sentencing stated that she consider the: ‘impact each contempt had upon the due administration of justice, which I determined was none in the circumstances I am considering’, and ‘[t]he staff of the court should not have to put up with…found language directed at them and others’.
i.never raised the association of being the sister of Helen Marriott, and erased all reference to Helen Marriott in her sentencing summary (at [28]) and in the sentencing judgment generally.

In Victoria, contempt proceedings may be invoked by a summary contempt procedure or by originating motion. In this case, the initial charges were brought by originating motion. The judge gave the plaintiff leave to amend the originating motion to add charges 6-7 and 9-12, which arose from conduct in the hearing of the originating motion. Mr Slaveski submitted that the effect of doing so was ‘to place the judge in all but one of the roles a judge should not appear to be taking on: “at once” a victim, a witness, and the judge’.[36] The Written Case observed:

Although conceded the judge was not also prosecutor, the prosecuting instructor was the particularised victim, in charges 6 and 7 … Neither prosecutor nor judge raised the fact that Helen Marriott was Her Honour’s sister.

[36]Written Case [29] citing European Asia Bank AG v Wentworth (1986) 5 NSWLR 445, 452-3 (Kirby P).

Mr Slaveski submitted a possible course of reasoning that might lead a reasonable person to think the primary judge might have decided the case ‘other than on its legal and factual merits’[37] was as follows:

Her Honour came to hold a personal resentment towards the applicant by reason of both her sister having received abusive emails and by the charges relating to her own proceeding; the resentment led judge to decide to hear the charges herself in the absence of the accused rather than leaving them for an independent judge to hear them after her retirement; the resentment led the judge focused upon the effect of the threats upon the recipient rather than questioning what they were directed to; the resentment led Her Honour to make assumptions of the accused unsupported by the evidence, such as that she had already decided he left to avoid service when previously to her sister’s receipt of the emails she had decided to the contrary; the resentment resulted in the highest sentence being imposed on charge 12, which had the combination of both involving her own proceedings and sister. It is further submitted that Her Honour’s failure to identify her association with Helen Marriott, and the erasure of her sister from the sentencing judgment, ‘casts some evidentiary light’[38] on the question, in that a reasonable person might think Her Honour might have been attempting to downplay or hide the association.[39]

[37]Written Case [30] citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 345 [8].

[38]Citing Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 360 [70].

[39]Written Case [30].

The respondent observed that abusive and threatening emails had been sent to a number of persons associated with the contempt proceeding and that Mr Slaveski has been abusive and threatening to almost every judge he has appeared before. Further, putting to one side expressions of his delusional beliefs, no suggestion of any apprehension of bias was made at the hearing by way of the email communications or through Mrs Slaveska, whom the judge found was in communication with Mr Slaveski during the hearing. In any event, the respondent submitted that any apprehension of bias ‘was of the applicant’s own making’, and was his response to his conduct in targeting those involved in the proceeding rather than the response of a reasonable fair minded observer.

There is no merit in this ground.

First, it must be recalled that the essence of some of the contempt charges was improper communications to court officials and employees of prosecuting authorities. Cases of contempt in the face of the court can involve improper conduct directed at the judicial officer.

Secondly, the ‘course of reasoning’ suggested by Mr Slaveski imputed a series of assumptions to a reasonable observer. In particular, the Written Case employs an artifice that the impartial reasonable observer would have detected the judge’s ‘personal resentment’ towards Mr Slaveski for sending abusive emails to her sister and ‘by the charges relating to her own proceeding’. This proposition, which is a central plank of the argument in support of this ground is unsustainable and unreasonable because it has no proper basis.

Two further observations may be made about the presumed ‘resentment’ premise of the applicant’s argument as to bias. In Vakauta v Kelly Toohey J said:

I accept the observation of McHugh J.A. in the instant case that "in the case of a professional judge whose training, tradition and oath or affirmation require him to discard the irrelevant, the immaterial and the prejudicial, a conclusion that there is a reasonable apprehension that he is biased should not be drawn lightly".[40]

[40](1989) 167 CLR 568, 584-585 (Toohey J).

Secondly, the foundational notion of the ‘judge as victim’ in Mr Slaveski’s Written Case is groundless. Contempt is understood by judges as Hayne J described the concept in Re Colina; Ex parte Torney, ‘[t]he cardinal feature of the power to punish for contempt’ is that it ‘is an exercise of judicial power by the courts, to protect the due administration of justice’.[41]
[41](1999) 200 CLR 386, 429 [112] (emphasis in original).

Other assumptions underpinning the submissions in support of ground 2 conflict with her Honour’s findings.

(a) There is no evidence that any mention of her Honour’s sister (her Honour’s associate) was ‘erased’ from the sentence - there are many people who were recipients of the communications the subject of the contempt charges who were not named in the reasons for sentence. Further, there is express reference to communications to Ms Marriott in her capacity as associate to King J in her Honour’s liability reasons. There is no circumstance that would suggest to the reasonable fair minded observer that the judge was inappropriately characterising such communications as being to her sister and not to her associate in the context of contempt charges and there were no signs of any personal resentment engendered in the judge by reason of the relation;

(b) There is no evidence, Mr Slaveski not having sworn an affidavit, of when and how he learned that the judge’s associate was her sister. The point bears the hallmarks of a ‘lawyer’s construct’;

(c) Mr Slaveski alleged that her Honour’s resentment led her to infer without any evidentiary basis that he ‘had already decided he left [Australia] to avoid service when previously to her sister’s receipt of the emails she had decided to the contrary.’ As the discussion of this ruling under ground 1 above shows, the judge’s ruling regarding the applicant’s absence was not influenced by ‘resentment’ and was not infected with error; and

(d) Her Honour made detailed findings to in respect of each charge about how the threats were directed.[42]

[42]Extracted below at [97].

The Written Case does not develop the fatuous contention that the resentment resulted in the highest sentence being imposed on charge 12, which appears to be a groundless assertion.

The failure to disclose the irrelevant aspects of the relationship between the associate, as a court officer receiving abusive and improper communications, and the court does not cast any evidentiary light on the existence of the familial relationship as supporting an inference available to the independent fair minded observer that the judge was downplaying or hiding the association and her resentment of the involvement of her sister.

The High Court set out the test in Ebner:

[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. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial.[43]

[43](2000) 205 CLR 337, 344–5 [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).

The Ebner test has two stages:

First, it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding a case on its merits. The bare assertion that a judge … has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[44]

[44]Ibid 345 [8].

Much judicial ink has been applied to the issue since Ebner but it is unnecessary for me to add to it. Recently, the Court of Appeal in Bodycorp Repairers Pty Ltd v Holding Redlich explained that the test is a three-stage exercise:

It is to be observed that the last sentence of the quoted passage suggests that there is an additional third test — namely, the assessment of the reasonableness of the asserted apprehension of bias. Recently, in Isbester v Knox City Council, Gageler J set out the three steps as follows:
Step one is identification of the factor which it is hypothesised might cause a question to be resolved otherwise than as a result of a neutral evaluation of the merits. Step two is articulation of how the identified factor might cause that deviation from a neutral evaluation of the merits. Step three is consideration of the reasonableness of the apprehension of that deviation being caused by that factor in that way.

To similar effect is the following three-step analysis expressed by Hayne J in Minister for Immigration and Multicultural Affairs v Jia …
Accordingly, it is incumbent upon the party seeking recusal: first, to identify the conduct said to give rise to the apprehension of bias through pre-judgment; secondly, to articulate the connection between that conduct and the possibility of departure from impartial decision-making with respect to the questions to be decided; and thirdly, to consider of the reasonableness of the apprehension of that departure being caused by that conduct in that way.
The apprehension in question is an apprehension that the judge will not decide the case impartially, not merely an apprehension that he or she ‘will decide the case adversely to one party’. The test does not call for an inquiry into how the judge will in fact approach the matter; rather, it is a question of ‘possibility (real and not remote), not probability’. Where, as in the present case, ‘the matter has already been decided, the test is one which requires no conclusion about what factors actually influenced the outcome. No attempt need be made to inquire into the actual thought processes of the judge’.[45]

[45][2018] VSCA 17 [79]-[82].

Once the artifice, that the impartial reasonable observer would have detected the judge’s ‘personal resentment’ towards Mr Slaveski from the circumstances identified, is swept away as baseless, Mr Slaveski fails to articulate how the identified facts might cause or give rise to the possibility of deviation from an impartial evaluation of the merits of the case. No connection is made between a want of impartial decision making and any matter other than this notion of ‘personal resentment’. The Written Case does not address the third requirement of the reasonableness of the apprehension that this ‘personal resentment’ might possibly cause a departure from impartial decision-making.

I am satisfied that the asserted apprehension of bias is groundless and unreasonable.

I have not been persuaded that there is any merit in ground 3 which is that the learned trial judge misdirected herself in deciding that the contempts before her were absolute liability offences.

Although ground 3 initially appears to be addressed to charges 3-12 it later appears to be confined to charges 4 and 6-12.

The crux of the applicant’s argument seems to be that although the conduct constituting these contempts is likely criminal conduct, being threats to kill or cause serious injury, they lack the necessary attendant mens rea to be contempts. The concession made about the characterisation of the conduct as criminal seems to place an insurmountable impediment on this contention.

Mr Slaveski’s Written Case submitted these charges alleged a species of contempt in which it was necessary to prove ‘the ‘threats’ or ‘punishments’ are directed at judges as judges or parties as parties’. The argument continued that charges 4 and 6-12 fall within the same category of case as witness threats and reprisals, and involve threats made to judges and parties. Mr Slaveski cited A-G v Butterworth where Lord Denning said:

[C]ontempt of court is a criminal offence, punishable summarily by the court itself, and, like all criminal offences, it requires in general a guilty mind. I do not think that Reg v Odhams Press Ltd, Ex parte Attorney-General warrants the large proposition that has been drawn from it; and in any case it has since been reversed by section 11 (1) of the Administration of Justice Act 1960. At any rate, the law requires a guilty mind in these cases of intimidation or victimisation of witnesses. It is easy to imagine cases where the dismissal of a witness from his employment, or his suspension or expulsion from a trade union, might well be done and justified for reasons quite apart from the evidence he has given, and that clearly would not be a contempt of court.
It seems to me that the intimidation of a witness is only a contempt of court if it is done with the purpose of deterring him from giving evidence or influencing him to give it in a sense different from that in which he would otherwise have given it, and the victimisation of a witness is only a contempt of court if it is done with the purpose of punishing him for having given evidence in the sense he did.[46]

[46][1963] 1 QB 696, 722-723.

Although Mr Slaveski acknowledges, that unlike witnesses, it is rare that a threat directed at a judge or prosecutor will be directed at them in other than those capacities, nonetheless he submitted this is such a case. The threats were made to those the applicant believed were conspiring to kill him, in their capacity as conspirators. This submission misconceives capacity. The threats were plainly made, as the judge found, in their capacities as participants in the legal process, precisely the capacity in which threats directed at witnesses will be contemptuous.

Mr Slaveski submitted that the judge accepted and applied the prosecutor’s contention that it was unnecessary to prove mens rea in any contempt proceeding and that the error was evident in the following paragraph from her Honour’s reasons:

There is a line of argument that what is required in non-media publication cases, is proof of an intent on the part of the respondent that he intended to commit a contempt of the court. I agree with views of Beach and Whelan JJA, that it is not necessary to prove an intent to commit a contempt and that the mens rea required in respect of a contempt is proof that the person intended to do the acts which are capable of, or do, amount to contempt. In criminal terms it would be proof that the acts were conscious, voluntary and willed acts. The issue of intention is relevant to the seriousness of the charge, and the level of punishment that the contempt may attract.[47]

[47]R v Slaveski [2014] VSC 400 [88].

The reference to the reasons was selective. Her Honour continued:

It was submitted by the applicant that even if the conduct did not fulfil the requirements of contempt outlined above, because the possibility of interference is merely remote or theoretical, the offence of contempt may nonetheless be made out if the respondent has an intention when committing the acts alleged to constitute the contempt, to interfere with the administration of justice or is reckless in respect of an interference with the administration of justice.
For this the applicant relies upon the principles referred to in Attorney-General (NSW) v John Fairfax & Sons wherein the court, comprising Street CJ, Hope and Reynolds JJA, firstly cited with approval the speech of Lord Reid wherein he stated one of the requirements for the proof of contempt to be that:
there must be a “real risk, as opposed to a remote possibility” of influence, and that there is no contempt if the possibility of influence is remote.

However, the court also drew a clear distinction with what it described as another class of case, wherein it determined that a publication will constitute contempt, even though the possibility of interference is remote or theoretical when they stated:
These are cases where matter is published with the intention of interfering with the due administration of justice in the particular case. The same principle applies to other acts done with that intention. Thus a letter written to a judge trying a case, or a bribe offered to him, or an article published in a newspaper, will be contemptuous, if the act was done, or the publication was made with the intention of influencing the judge’s decision in proceedings, even though the possibility that he will be influenced is remote or theoretical.

Those categories of attempts to bribe, blackmail or threaten a judicial officer have long been regarded as a category of contempt of court and as stated in Re Dyce Sombre:
Every private communication to a judge, for the purpose of influencing his decision upon a matter publicly before him, always is, and ought to be, reprobated; it is a course calculated, if tolerated to divert the course of justice, and is considered, and ought more frequently than it is, to be treated as, what it really is, a high contempt of court.

Thus, whilst it may be considered that a law abiding judicial officer would, for example, never take a bribe or succumb to threats, and it would be expected that judicial officers would uphold their sworn duty to determine matters without fear, favour or affection, it is unnecessary for a court to determine objectively whether the threat, bribe or communication may have that tendency, or if that tendency is too remote.

In the Attorney-General (Vic) v Rich a decision of Byrne J, the respondent, Rich, was appearing as an accused in a trial in the County Court, and during that trial he complained to the judge that he was not receiving a fair trial, he described the proceedings that the judge was conducting as a sham and illegal, that the judge had resolved to obtain his conviction from day one and he referred to the presiding judge as a “silly old dog” and a “rat”.
Sometime later, after the luncheon adjournment and before the judge returned to the court, the accused made strong threats to the prosecutor, including:
I’m telling you ok I don’t care how long it takes, 25 years bitch, I’ll have a go at you, one go that’s all I want, and you think by locking me up for 25 years I don’t have legs and arms out there. I have a bank account overseas, and even without the money will be able to get you any time slut, I’m telling you. A thousand bodyguards won’t help you.

There were other threats of a similar nature, to which I shall not refer.
Byrne J held as follows:
In cases such as this where an accused addresses the judge on the bench deliberately in terms which are abusive and offensive or deliberately directs threats to injure or kill counsel, I doubt very much whether this court should be concerned with an inquiry as to what was the actual purpose of the contemptnor; (citations omitted). It is apparent from the nature of the acts themselves that they have a tendency to interfere with the course of justice by scandalising the court in the one case and by dissuading or punishing counsel for having performed her duty in the conduct of the trial on the other hand… in cases like the present, however, where the acts themselves tend to interfere with the course of justice it is sufficient that the court be satisfied that they were performed consciously and voluntarily.

In summary, these allegations will be determined on the basis that the elements of the offence must be proved beyond reasonable doubt. That the onus of proof of those elements lies upon the applicant. That the applicant must prove either that the respondent did an act or made a statement (a conscious voluntary willed act) which may interfere with, or tends to interfere with, the administration of justice, or that he had an intention when committing the acts or making the statements alleged to constitute the contempt, to interfere with the administration of justice or was reckless in respect of an interference with the administration of justice. The tendency to interfere with the administration of justice must be determined objectively and assessed at the time of the act or acts in question.[48]

[48]Ibid [89]-[95].

Mr Slaveski’s solicitor, Mr Marcevski asserted in an affidavit that Riordan J ‘in effect accepted that King J had misdirected herself in accepting the applicant’s submissions on mens rea, but found that it would not have made a difference’. The point was not taken and developed in the Written Case, and, I suspect, for good reason. His Honour said:

In support of the submission for a rehearing, it was submitted that Slaveski had defences on the merits for the following reasons:
(a) Mens rea was a necessary element of the offence and Slaveski’s delusional beliefs make it at least arguable that he was not threatening the judges or other court officials in their official capacity. In Gregory v Phillip Morris Ltd, Gray J found that:
In a case of alleged contempt of court involving intimidation of a witness, it must be proved beyond reasonable doubt that the alleged contemnor had some appreciation that the person threatened was a potential witness and had some intention to dissuade the potential witness from giving evidence …

…
I accept the submission on behalf of Slaveski that, to establish a charge of contempt of court based on threats to judicial officers and other court officials, it must be proved beyond reasonable doubt that the accused intended to direct the threats to the persons in connection with their official capacity. It would be trite to say that insults directed to a person who happens to hold judicial office at a football match in connection with his or her support of the Collingwood Football Club could not, without more, constitute a contempt of court. However, I reject the submission that there is any prospect of Slaveski raising a defence on this basis. Reference to the facts of this case could leave no doubt that Slaveski was well aware of the capacity of the persons to whom he directed the relevant threats; and the fact that he was directing the threats to them in connection with their official capacities.[49]

[49][2017] VSC 526 [60], [108].

The following extracts relating to the impugned charges 4 and 6-12 make it clear that the judge found that the applicant did have a specific intention to interfere with the administration of justice.

(a) Charge 4:

In relation to charge 4, I am satisfied beyond a reasonable doubt that the applicant has proved that the respondent has committed a contempt of the court in that he has made threatening statements in the telephone call to Daniel Coombes which had a tendency to interfere with the due administration of justice in that they had a real, and not remote, tendency to intimidate a judicial officer in connection with the performance of her duties, a tendency to dissuade a judicial officer from continuing to perform her duties in connection with proceedings involving the respondent, had a tendency to place improper pressure on a judicial officer in the performance of her duties and had a tendency to punish a judicial officer for decisions or findings made by her which were adverse to the respondent.
I further find that the respondent intended to interfere with the due administration of justice by uttering the words on that day.[50]
[50]R v Slaveski [2015] VSC 400 [112]-[113].

(b) Charge 6:

I have considered whether the respondent intended to interfere with or obstruct the due administration of justice and I find in these circumstances that he did. The sending of the email to Stephen Lee was a conscious, voluntary and willed act. It was sent in Stephen Lee’s capacity as the solicitor for the applicant and, in my view, the respondent intended to challenge the decision to initiate the proceedings and to threaten Stephen Lee in the hope that the proceedings may not continue.[51]
[51]Ibid [117].

(c) Charge 7:

I am satisfied that the contents of that email had a tendency to interfere with the due administration of justice. The contents of that email contained threats to the wife of Stephen Lee, specifically threats of sexual assault. It was abusive and contained clear indications of threats of violence, all of which were directed towards convincing Stephen Lee to not proceed with the contempt that had already been instituted. It constituted undue pressure in his capacity as a legal representative of a party to the proceedings.
As to his intention, I find that Mr Slaveski intended to be abusive, threatening, and intended to threaten Stephen Lee’s wife for the purpose of interfering with the proceedings, that is, in to attempt to have the proceedings stopped.[52]
[52]Ibid [118]-[119].

(d) Charge 8:

The email was calculated to place pressure on Williams J in her capacity as a judge hearing the vexatious litigant application and to intimidate and improperly attempt to influence her decision. The writing of the email was an intentional, deliberate and willed act which was sent to the Associate of the Judge with a specific request that the email be brought to her attention indicating he was aware of her status of the judge of the court.
I am satisfied that at the time the respondent sent the email his purpose was to interfere with the due administration of justice by making threats of violence to employees of the court and attempting to intimidate and influence the trial judge, together with unwarranted demands for payments of significant sums of money.[53]
[53]Ibid [120]-[121].

(e) Charge 9:

These are clear attempts to intimidate and interfere with judicial officers in the performance of their duty, threats to punish judicial officers including Justice Whelan and Chief Justice Warren for previous decisions or findings adverse to the respondent. The email is offensive, abusive and undermining to the authority of the court. That conduct had a clear tendency to interfere with and obstruct the due administration of justice. The allegations were made that the court and the judges were corrupt. The respondent was attempting to interfere with the court’s proceedings by having the proceedings terminated via the content of this email.
As to his intentions, I find that he intended to interfere with or obstruct the due administration of justice, by being abusive, alleging that all of the judges were corrupt and that they have given orders to kill him, that he was wrongly imprisoned and that he would use a violent form of pay-back against those judges responsible for imprisoning him and for making adverse findings against him in other matters.[54]
[54]Ibid [122]-[123].

(f) Charge 10:

The email is very clear attempt to interfere with judicial officers in the performance of their duties and an attempt to intimidate the judicial officers as well as the legal representatives of the parties. The email had a tendency to influence, improperly pressure, attempt to dissuade and punish judges for conducting their duties according to their oath of office.
In relation to the intention of the respondent, I find that the respondent specifically intended to interfere with or obstruct the due administration of justice at the time that he sent this email. It was a conscious, voluntary and willed act. It can be seen by the words used that he intended to be abusive, threatening and intimidating towards the judges, lawyers, public servants and police involved in his litigation, in the past, present and future.[55]
[55]Ibid [125]-[126].

(g) Charge 11:

The email has a tendency to interfere with and/or obstruct the due administration of justice in that it contains abusive language directed towards the judge hearing his litigation, threats of sexual violence by the respondent upon that judge, together with allegations of corruption, which have a tendency or were intended to threaten, intimidate, place improper pressure or improperly influence a judicial officer in the performance of her duties. It also demonstrates an intent to punish a judicial officer for findings or decisions made by that judge, as well as being personally offensive to that judge.
As to the intent of the respondent, I find that the sending of the email and attached photos together with the choice of words was a conscious, voluntary and willed act, that he intended to be offensive, abusive, intimidatory, threatening, all done with the intention of challenging the authority of the court and the judge in an attempt to dissuade the judge or judges from performing their duties in respect of litigation involving him, both currently and in the future.[56]
[56]Ibid [127]-[128].

(h) Charge 12:

I am satisfied that the words used may have a tendency to place improper pressure or influence on a judge or judges who are attempting or may be attempting to perform their duties. The offensive nature of his comments are such that they have a tendency to undermine the authority of the court and the judges of the court.
As to his intention, I find that the choosing of the words and the sending of the email was a conscious, voluntary and willed act on the part of the respondent and that at the time he sent the email he intended to be abusive, threatening, intimidatory to judges, public servants who work within the courts and the police involved in his matters for the purpose of attempting to dissuade, improperly influence or place pressure upon those judges, their staff and the police. His personal and offensive comments about judicial officers and what he wished to do to them were designed to interfere with or obstruct the administration of justice in that he wished to undermine the authority of both the court and the judges.[57]

[57]Ibid [129]-[130].

It cannot be disputed that the judge concluded that Mr Slaveski’s communications were sent to judges, court staff, and representatives of parties in their capacities as such. What the applicant appears to be seeking to do is introduce new evidence, the reports of Dr Cidoni, to suggest the judge was in error as Mr Slaveski in fact directed the communications to the judges, court staff, and parties in their (imagined) capacities as conspirators against him.

This ground is predicated on the assumed acceptance of new, untested evidence; the reports of Dr Cidoni. This material wasn’t before the judge and the Written Case does not persuade me that this ground has any reasonable prospect of acceptance by the Court of Appeal.

Appeal against sentence

By ground 4, Mr Slaveski contends that in light of the conclusions of Dr Cidoni, he should be resentenced.

Determination of an application for leave to appeal against sentence under s 278 of the Criminal Procedure Act is governed by s 280 of the Criminal Procedure Act.

Mr Slaveski submitted that the judge recognised that the principles in Verdins[58] may have been ‘very significant’ when sentencing the applicant, but noted that she ‘lacked the materials’. Mr Slaveski asserts the conclusions of Dr Cidoni ‘throw significant new light on the pre-existing facts’.[59]
[58]Verdins v R (2007) 16 VR 269.
[59]Citing R v Nguyen [2006] VSCA 184 [37].

Mr Slaveski submitted that given his mental health was ‘the very reason’[60] Dr Cidoni’s opinions were not before the primary judge, the Court of Appeal should exercise its discretion to consider them. Alternatively, the opinions of Dr Cidoni were not reasonably available because Mr Slaveski had not been diagnosed or treated.
[60]Citing Eastman v The Queen (2000) 203 CLR 1, 90-91 [272] (Kirby J), 112-113 [348] (Callinan J).

With regard to Verdins criteria, Mr Slaveski will rely on Dr Cidoni’s conclusions that his schizoaffective disorder:

(a) impaired his ability to exercise appropriate judgment;

(b) impaired his ability to make calm and rational choices or think clearly;

(c) made him disinhibited;

(d) impaired his ability to appreciate the wrongfulness of the conduct;

(e) obscured his intent to commit the offence; and

(f) contributed causally to the commission of the offences.

Accordingly Mr Slaveski submitted that his reduced culpability:

(a) reduces both the punishment that is just and the likelihood that denunciation is a relevant principle;

(b) moderates or eliminates the application of general deterrence; and

(c) moderates or eliminates the application of specific deterrence.

Mr Slaveski further submitted that, based upon his apparent lack of antipsychotic drug treatment in prison and Dr Cidoni’s opinion that his mental state ‘would deteriorate in prison’:

(a) the sentence will and has weighed more heavily on him than it would upon a person in normal health;

(b) prison will, and has had, a significant impact upon his mental health. Further imprisonment will increase the likelihood of further offending due to its impact on his health; such that

(c) the condition has a bearing on the kind of sentence imposed when regard is had to the protection of the community.

The respondent simply argues the evidence of Dr Cidoni does not provide a reasonable ground for the proposed proceeding, as the primary judge had extensive material before her regarding Mr Slaveski’s mental health, and her sentencing remarks indicate that her Honour took his mental health into account in sentencing him.

The judge identified the following material in respect of Mr Slaveski’s medical condition:

In regard to your medical complaints, I have received and read the following documents: a report dated 23 January 2009 from Shalika Ranaweera; an email addressed to Supreme Court, Justice Kyrou dated Monday, 21 September 2009 from Shalika Ranaweera; a report addressed to County Court, her Honour Judge Douglas dated 6 November 2009 from Shalika Ranaweera; a report from the Plaza Clinic Lalor from Dr GS Duggal dated 16 November 2009; a report from Dr RW Farnbach dated 30 November 2009; a letter addressed to Dr Duggal from Dr M John Williams cardiologist dated 23 May 2005; a report dated Monday 5 December 2011 from Shalika Ranaweera, psychologist; a report dated 16 September 2012 from Wichai Limpipatasnasopon Khun, confirming that you received acupuncture for neck pain on that date; a report from Dr Stephen H Allnutt psychiatrist dated 2 October 2012; a report from Northern Health Emergency Department, Benjamin Lui, Emergency Physician dated 6 March 2013; a report from the Plaza Clinic Lalor from Dr GS Duggal dated 25 June 2013; a report from Dr RW Farnbach psychiatrist dated 22 August 2013; a document in a foreign language to which is affixed a certificate purporting to be a translation from Macedonian into English dated 3 July 2014 from a Dr Deni Razmoski …
…
And finally a report dated 27 October 2014 from Dr RW Farnbach psychiatrist. Those documents were provided to me by your wife, Snezana Slaveska.[61]

[61]R v Slaveski [2015] VSC 416 [15].

The judge also documented previous findings made by Whelan J regarding Mr Slaveski’s mental health:

Justice Whelan, in imposing sentence in respect of your previous contempt stated:
11.      Your own affidavit and the affidavit of your wife refer extensively to your psychiatric history. There were a number of reports tendered and oral evidence was also given in the course of the trial on this issue. One of the psychiatrists who gave evidence at the trial, Dr Farnbach, has prepared an updated report which is exhibited to your affidavit.
12.      On the evidence before me, I conclude that you suffer from a mental disturbance involving, among other things, very significant anxiety. One psychiatrist, Dr Sullivan, considers that you suffer from a delusional disorder; another, Dr Farnbach, is of the opinion that you meet the criteria for posttraumatic stress disorder. Ms Ranaweera, a psychologist, has also diagnosed post-traumatic stress disorder. Both Dr Farnbach and Dr Duggal consider that there will be, or may be, deterioration in your psychiatric condition if you are imprisoned.
13.      I am satisfied that at the time of your offence you suffered from a mental disorder or abnormality or impairment of mental function, and that you still do so. It does not matter how that condition is to be categorised. It was a condition which impaired your ability to exercise appropriate judgment.
14.      In accordance with applicable authority my conclusion is that your mental condition was such that it reduces your moral culpability, it has a bearing on the kind of sentence to be imposed, it moderates without eliminating the need for general deterrence and specific deterrence, it means that a sentence of imprisonment will weigh more heavily on you than on others, and there is a risk of an adverse effect on your mental health if imprisonment is imposed on you.

I agree with his Honour’s findings in respect of your mental health.[62]

[62]Ibid [17]-[18].

Whelan J referred to Verdins in his reasons and,[63] as has just appeared in the extract, the judge adopted this analysis.
[63]R v Slaveski (Sentence) [2012] VSC 7 [14].

The judge expressed her conclusions regarding Mr Slaveski’s mental health:

It is important that the courts do set the boundaries as to what will be tolerated, even by those who have some form of mental health issues. Without that, the system of justice would become unworkable. The courts would be consistently held up to ridicule, the staff would be subjected to intolerable stress and even judges, robust as they may be, may find themselves placed under such fear and stress that they may become unable to carry out their proper judicial function, without fear or favour. Persons coming to work in an environment such as the courts or those in a solicitor’s office who are involved in litigation in the courts, should not be confronted or expected to put up with behaviour of this type which threatens their physical and mental wellbeing.

…
You were aware, and remain aware, of the consequences of your actions. Despite having fixed and rigid views as to what has occurred, it is clear that you can moderate your language and your behaviour if you so desire, as is shown in the two occasions to which I referred earlier, when you were being recorded before Chief Magistrate Lauritsen and in the record of interview with Senior Detective White. Whilst your moral culpability is reduced, the offending is of such a high level that general deterrence and specific deterrence, in your case, still remain substantial factors.
…
Declare that but for your mental health condition, the sentence imposed would have been at least double.[64]

[64]R v Slaveski [2015] VSC 416 [23], [25], [28].

Riordan J also referred to these aspects of the judge’s reasons and, in addition, Riordan J had two reports from Dr Cidoni dated 23 February 2017,[65] and a supplementary forensic psychiatric report of 23 May 2017.[66]
[65]R v Slaveski (Appln to set aside contempt orders) [2017] VSC 526 [48].
[66]Ibid [51].

The crux of ground 4 is the new evidence provided by Dr Cidoni. In R v Nguyen Redlich JA set out the principles applying to the admission of such evidence:

It is common ground that this Court may, in limited circumstances - sometimes described as “rare and exceptional” - permit evidence to be led of matters or events that have occurred since the sentence was imposed to enable this Court to reconsider the sentence in the light of that additional evidence. The following principles apply to the admission of such evidence:
(i)the new evidence must relate to events which have occurred since the sentence was imposed;
(ii)the evidence must demonstrate the true significance of facts in existence at the time of the sentence;
(iii)the evidence will not be admitted if it relates only to events which have occurred after sentence and which show that the sentence has turned out to be excessive;
(iv)the new evidence may be admissible even though the applicant did not refer to the pre-existing state of affairs in the course of the plea;
(v)upon the admission of the new evidence, it is unnecessary to determine whether the original sentence was vitiated by error, or whether it was manifestly excessive; and
(vi)the question is whether, on all of the material now before the Court, any different sentence should be substituted to avoid a miscarriage of justice.

The consistent approach of this Court has been to treat the sentencing discretion as reopened once it has been concluded that the fresh evidence throws significant new light on the pre-existing facts. The Court must determine what is the appropriate sentence on the basis of all of the material then before it.
Many of the cases which support these propositions concerned the admission of new evidence of subsequent events which made imprisonment an even greater burden for the offender and which resulted in the Court varying the sentence imposed.[67]

[67][2006] VSCA 184 [36]-[38].

Mr Slaveski has not expressly addressed the criteria for the admission of the reports of Dr Cidoni in his Written Case. However, I am persuaded that an application pursuant to the Nguyen principles may be encompassed within ground 4 and that there are reasonable grounds for contending that Dr Cidoni reports are fresh evidence that throw significant new light on the pre-existing facts that may reasonably be capable of persuading the Court of Appeal that the sentencing discretion should be re-opened to avoid a miscarriage of justice.

For these reasons, I am persuaded that an application to extend the time for Mr Slaveski to seek leave to appeal the sentence imposed on him is not a vexatious proceeding and that there are reasonable grounds for the proceeding. I am not persuaded that there are reasonable grounds for an application to extend the time for Mr Slaveski to seek leave to appeal the declarations that he is in contempt.

I will grant leave pursuant to s 53 of the Act for Mr Slaveski to commence an application in the Court of Appeal, pursuant to s 313 of the Criminal Procedure Act2009, for an extension of time in which to file an application for leave to appeal, pursuant to s 278 of the Criminal Procedure Act 2009, against the sentences imposed on him by King J on 14 August 2014. His application is otherwise dismissed.

The bail application

Mr Slaveski relies upon the following grounds in support of his application for leave to commence an application for bail pending appeal under s 310 of the Criminal Procedure Act:

(a) before the appeal will be heard, the whole or a substantial portion of his non-parole period will have expired;

(b) he has strong grounds of appeal;

(c) his mental health has deteriorated and is deteriorating in prison;

(d) there is stable accommodation for him if bailed;

(e) he enjoys strong family support;

(f) the mental condition which had caused previous offending behaviours is treatable;

(g) there are medical practitioners in the community with the capacity and willingness to treat him;

(h) a surety of $300,000.

Mr Slaveski seeks:

(a) leave to commence the proceeding under s 54 of the Act; and

(b) that bail be granted.

Section 310 of the Criminal Procedure Act enables a prisoner within the meaning of the Corrections Act 1986 who applies for leave to appeal to apply to the Court of Appeal to be granted bail pending appeal.

The relief sought by the proposed bail application can only become available to Mr Slaveski should:

(a) he be granted leave under s 55 of the Act to commence an application for an extension of time in which to file an application for leave to appeal; and

(b) the extension of time in which to file the application for leave to appeal is granted.

The first condition will be satisfied by the order that I will make on this application. Whether the second condition will be satisfied is a matter for the Court of Appeal. That said, I am persuaded that subject to the Court of Appeal granting an extension of time for an application for leave to appeal against the sentence imposed, the necessarily ancillary application for bail pending that appeal ought to be considered by the Court of Appeal at the earliest opportunity.

I am satisfied that once the necessary preconditions are satisfied that application for bail will not be a vexatious proceeding and that there are reasonable grounds for the application.

Accordingly, I will grant leave pursuant to s 53 of the Act for Mr Slaveski to commence an application in the Court of Appeal, pursuant to s 310 of the Criminal Procedure Act2009, for bail. Such application may be made to the Court of Appeal in conjunction with, but not before, any application for an extension of time in which to file an application for leave to appeal against the sentences imposed on him by King J on 14 August 2014.

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[2018] VSC 39

12 February 2018