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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
R v Slavich [2009] NZCA 188
Case
[2009] NZCA 188
Decision Date
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).