Slaveski v The Queen

[2015] VSCA 264

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2015 0173

LUPCO SLAVESKI	Applicant
v
THE QUEEN	Respondent

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JUDGES:	PRIEST JA and CROUCHER AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 September 2015
DATE OF JUDGMENT:	18 September 2015
MEDIUM NEUTRAL CITATION:	[2015] VSCA 264
JUDGMENT APPEALED FROM:	The Queen (on the application of the A-G) v Slaveski [2015] VSC 416 (King J).

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CRIMINAL LAW – Application for leave to appeal against conviction and sentence – Contempt – Applicant sentenced to 23 months imprisonment with 15 month non-parole period – Applicant fugitive from the jurisdiction – Whether applicant can appeal while not submitting to the Court’s jurisdiction – Leave to appeal refused without an adjudication on the merits – Jopar v The Queen (2013) 275 FLR 454 – Vexatious Proceedings Act 2014 considered.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance
For the Crown	Mr J Langmead QC with Ms F Forsyth	Victorian Government Solicitor’s Office

PRIEST JA
CROUCHER AJA:

The issue

1. Lupco Slaveski (whom we shall call ‘the applicant’) was found guilty of contempt of court by King J on 12 August 2015.  In all, the applicant was convicted 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.[1]

   [1]The Queen (on the application of the A-G) v Slaveski [2015] VSC 400 (‘the contempt proceeding’).

1. On 14 August 2015, King J sentenced the applicant to be imprisoned for 23 months, with a non-parole period of 15 months, in relation to the charges.[2]

   [2]The Queen (on the application of the A-G) v Slaveski [2015] VSC 416 (‘the sentence proceeding’).

1. Within the statutory time period, in September 2015 the applicant purported to seek leave to appeal against both his conviction and sentence under Part 6.3 of the Criminal Procedure Act 2009. Thus, the applicant sought to file documents styled notices of appeal against conviction and sentence, and a written case. Both the ‘Notice to Appeal Against Conviction’ and the ‘Notice to Appeal Against Sentence’, it should be noted, contain scandalous content, so that the applicant asserts that he ‘was convicted in conspiracy’. Moreover, the ‘Written Case for the Applicant’ fails to comply with the applicable Rules.[3]

   [3]See Practice Direction No 2 of 2011, Section 4.

1. A question has arisen as to whether the notices of appeal and written case should be accepted for filing, given that the applicant remains a fugitive from the execution of a warrant for his arrest made by a judge of this Court.[4]  Written submissions were thus sought from the applicant and the respondent directed to that question.

   [4]Slaveski v Attorney-General (Vic) [2015] VSCA 31, [68].

The course of proceedings in this Court

1. We are satisfied both that a request from the Registry seeking submissions, and notifying him of today’s hearing, was communicated to the applicant.  Indeed, on 10 September 2015, the applicant sent an email to the Registry indicating that he was still overseas and had no intention of returning to Australia unless a person guarantees his safety ‘with their life’.  In the event, the Registry received no written submissions from the applicant, although we were informed this morning that submissions had been received by the respondent.  We were provided with a copy of, and we read, the submissions.  They were, to say the least, unhelpful.  When the matter was called on for hearing this morning, the applicant did not appear, and nobody sought to appear for him.

1. The Court did, however, have the benefit of written and oral submissions from the respondent’s counsel, and had regard to an affidavit of Daniel Jones, sworn 16 September 2015.

Relevant history

1. It is necessary to recount some further relevant history.

1. On 23 August 2013, an Originating Motion and Summons were filed in the contempt proceeding. By subsequent amendments made to the Originating Motion, further counts of contempt were added.

1. The applicant failed to attend a directions hearing in relation to the contempt proceeding.  Hence, on 17 October 2013, King J issued a warrant for the applicant’s arrest.  A new arrest warrant was later issued on 14 April 2014.

1. Both warrants were registered with Victoria Police and the Australian Federal Police for execution at all ports of entry for passengers to Australia.  The warrants were not, however, able to be executed prior to the hearing of the contempt proceeding.

1. On 17 June 2014, King J determined to hear the contempt proceeding in the applicant’s absence.  Her Honour found that the applicant:

·      was fully cognisant of the contempt charges laid against him;

·      had consistently indicated that he would not return to the jurisdiction, or attend the proceedings, unless certain of his demands were met;

·      departed Australia in September 2013, so as to avoid service and attendance at the trial;

·      was living overseas (although it was not clear in which country).

1. Later, as we have mentioned, on 14 August 2015, declarations adjudging the applicant guilty of contempt were made, and sentences imposed, in the contempt proceeding.  Since the applicant was out of Australia, a Committal Warrant was issued to both Victoria Police and the Australian Federal Police.[5]  That Committal Warrant has not, however, been executed.

   [5]The sentence proceeding, [28].

Analysis

1. An appeal to this Court is not as of right.  As s 274 and s 278 of the Criminal Procedure Act 2009 (‘CPA’) make clear, in order to appeal against conviction or sentence, leave to appeal must first be obtained.

1. By absenting himself overseas, the applicant has deliberately frustrated the exercise of the Court’s jurisdiction.  As Priest JA explained in Jopar:[6]

First, by departing the country, the applicant largely frustrated the possible exercise of a number of the Court’s powers. Once seized of an appeal against sentence, error having been shown, this Court is not required necessarily to reduce a sentence. Section 283 of the CPA makes it plain that, if it allows an appeal against sentence, the Court may ‘impose the sentence, whether more or less severe, that it considers appropriate’. Before this Court takes the course of imposing a more severe sentence, however, as a matter of fairness the Court invariably advises the applicant of the potential to increase the sentence, so as to provide an opportunity for the appeal to be abandoned. In a case like this, where the applicant has left Australia, although in theory the Court’s advice might be conveyed (albeit, it must be thought, with difficulty), as a practical reality any decision to increase a sentence would be frustrated — if not rendered futile — by the applicant’s absence from the jurisdiction. Although in theory an unsuccessful appellant might nonetheless be extradited to serve an increased sentence, at the very least the implementation of the Court’s orders would be made more difficult.

Secondly, pursuant to s 330(2) of the CPA, the Court may require the attendance of a party to an appeal at a hearing; and under s 330(5) the court ‘may issue a warrant to arrest the person if the court is satisfied that the person has had reasonable notice of the requirement to attend’. Any such requirement of the Court if made, and the issue of a warrant if the requirement to attend be ignored, are rendered somewhat difficult to enforce if an applicant has left the jurisdiction.

Thirdly, if an applicant is absent from the jurisdiction, the Court is left somewhat hamstrung in imposing a different sentence should an appeal succeed.  …

[6]Jopar v The Queen (2013) 275 FLR 454, 468, [69]–[71].

1. In our view, the applicant’s conduct is calculated to thwart or frustrate the jurisdiction reposing in this Court.  He remains a fugitive, and has rejected the authority of the Court.  By making application for leave to appeal, the applicant wishes to invoke the Court’s jurisdiction, without submitting to it.  That is a sufficient basis to refuse leave to appeal without an adjudication on the merits.

1. The following considerations are significant:

·      there is an outstanding warrant for committal;

·      the applicant is aware of this warrant but has refused to return to Australia;

·      the applicant left Australia in September 2013 and thereby avoided two warrants for his arrest issued in October 2013 and April 2014;

·      whilst overseas, the applicant has been in regular email contact with Court officials and has indicated on many occasions that he will not be returning to Australia;

·      from overseas the applicant has engaged in email communications with judicial officers, court staff and legal representatives containing language and images that are threatening, vulgar, violent and abusive, and it is only because he remains at large that he is able to engage in this reprehensible conduct whilst at the same time still seeking to participate in proceedings.

Conclusion

1. For these reasons, we will refuse leave to appeal.

1. In light of that conclusion, we are absolved from the necessity of considering the further questions whether the applicant’s documents should be rejected for filing on the basis that they contain scandalous content and do not comply with the Rules.

1. Additionally, we need not consider the further question that arose as to whether the applicant was, in any event, required to seek permission under the Vexatious Proceedings Act 2014 to bring a criminal appeal (or an application for leave to appeal).

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