R v Slavich

Case [2009] NZCA 188


IN THE COURT OF APPEAL OF NEW ZEALAND

CA461/2007
[2009] NZCA 188

THE QUEEN

v

JOHN KENNETH SLAVICH

Hearing:26 February 2009

Court:Chambers, Gendall and Allan JJ

Counsel:J Haigh QC and B H McCarthy for Appellant


P P Crayton for Crown

Judgment:15 May 2009 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Table of Contents

Para No
Two frauds  [1]
Issues on the appeal  [4]
Under the law prior to the Evidence Act 2006, was it impossible for
           an accused to consent to the admission of unsworn evidence?           [9]
Were any of the verdicts unreasonable having regard to the evidence?      [28]
           The overall Crown case[37]
           The Booth transaction[44]
           The Hannon transaction[50]
           Mr Slavich’s complaints[56]
Result  [77]

Two frauds

[1]       In 2002, John Slavich was a chartered accountant practising in Hamilton.  The Crown alleged that, between October and December that year, he had participated dishonestly in two transactions, which for convenience we shall call the “Booth” and “Hannon” transactions. 

[2]       On Mr Slavich’s application, the trial was heard before a judge sitting without a jury.  Heath J, the trial judge, discharged Mr Slavich on three of the ten counts he faced, the Crown having elected not to call evidence to support those counts.  On the remaining seven counts, the judge found Mr Slavich guilty on six.  No verdict was required on the seventh, as it was an alternative charge.  Subsequently the judge sentenced Mr Slavich to imprisonment, a sentence he has since served. 

[3]       Mr Slavich belatedly decided he wished to appeal. This court granted his application to extend time for appealing: [2008] NZCA 116.

Issues on the appeal

[4]       The notice of appeal contained a number of grounds.  In the end, however, Mr Haigh QC, for Mr Slavich, agreed the issues on appeal came down to two. 

[5]       The first concerned the admissibility of some Crown evidence.  This was evidence from Carolyn Calder.  (By the time of the High Court trial, Mrs Calder had got married and had taken her husband’s surname.  At the time of the Hannon transaction, however, she was known as Carolyn Gibbs, and Heath J referred to her as Ms Gibbs throughout his judgment.  We shall do the same.)  For reasons we shall shortly explain, her evidence came in by consent, but unsworn.  There is no doubt at all that Mr Slavich’s trial counsel, Mr McIvor, consented to the admission of Ms Gibbs’s evidence.  Indeed, Mr Slavich was keen for the evidence to come in, as part of it, he thought, assisted his defence.  But Mr Haigh now takes the point that, notwithstanding Mr Slavich’s consent, the evidence, being unsworn, was inadmissible.  After discussion with the bench, Mr Haigh agreed that this first issue could be framed in these terms: under the law prior to the Evidence Act 2006, was it impossible for an accused to consent to the admission of unsworn evidence?  We stress the words “under the law…

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R v Slavich [2009] NZCA 188
Case
[2009] NZCA 188
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CaseChat Overview and Summary

John Kenneth Slavich was a chartered accountant who was convicted on six counts of fraud by Heath J, the trial judge, sitting without a jury. The frauds involved two transactions, referred to as the "Booth" and "Hannon" transactions, which took place between October and December 2002. The Crown alleged that Slavich had participated dishonestly in both transactions. The appeal to the Court of Appeal of New Zealand concerned the admissibility of some Crown evidence and the reasonableness of the verdicts. The Court of Appeal found in the Crown's favour on both issues, dismissed the appeal, and upheld the convictions. The Court of Appeal concluded that there was ample evidence to support the judge's conclusion that Slavich was party to a fraud under which he was to fulfil the role as a front man while Les Orchard (pretending to be Mr Adams) was to front to the financiers. The Court of Appeal also found that Slavich's innocent explanation of his role in the two transactions was implausible. The Court of Appeal concluded that this case did not come even close to establishing that this court should interfere with the verdicts under s 385(1)(a).

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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