R v Slavich
[2008] NZCA 116
•12 May 2008
IN THE COURT OF APPEAL OF NEW ZEALAND
CA461/07
[2008] NZCA 116THE QUEEN
v
JOHN KENNETH SLAVICH
Hearing:17 April 2008
Court:Hammond, Williams and MacKenzie JJ
Counsel:J Haigh QC for Appellant
F E Guy Kidd for Crown
Judgment:12 May 2008 at 11 am
JUDGMENT OF THE COURT
We grant an extension of time for appealing. We direct that:
· full grounds of appeal are to be filed and served within 14 days of the date of delivery of this judgment;
· the appellant's submissions are to be filed within 14 days of the date of filing of the points on appeal;
· the Crown submissions are to be filed within 14 days of the filing of the appellant’s submissions;
· as soon as the submissions are filed the Registrar is to allocate a fixture for the hearing of the appeal.
REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1] We have before us an application for an extension of time for appealing against conviction.
[2] After a trial before Heath J sitting without a jury convictions were entered against Mr Slavich on several counts of dishonesty: using a document with intent to defraud, to obtain a benefit; forgery; uttering a forged document; and unlawfully making a false document. The Judge delivered full reasons for his verdicts. The convictions were entered, and the reasons delivered, on 12 October 2006.
[3] Mr Slavich was a chartered accountant in private practice in Hamilton. The prosecution case against him was that he was one of the “compliant” professionals that enabled Leslie Ronald Orchard, a dedicated fraudster, to perpetrate a number of substantial frauds. Mr Orchard was himself charged with 686 offences of fraud, forgery and money laundering, in relation to monies apparently amounting to some $1,458,000. He pleaded guilty to all those charges, and was sentenced in early 2003 to seven years six months imprisonment with a five year non-parole period. That sentence was subsequently reduced on appeal to six years nine months, with a minimum non-parole period of four years six months. He subsequently pleaded guilty to a further 17 charges, for which he received a sentence of 18 months cumulative.
[4] On 21 November 2006, Mr Slavich was sentenced to two years three months imprisonment. He was subsequently released on home detention.
[5] Mr Slavich did not file an appeal against his convictions until 3 September 2007, some ten months after the convictions were entered.
[6] Although the substantive appeal was set down for hearing before this panel on 17 April 2008, on a preliminary inspection of the file prior to the hearing, it was noted that the appeal was well out of time but no application for an extension of time and supporting affidavits had been filed. On 2 April 2008, we convened a telephone conference with counsel. The Crown indicated that it wished to firmly oppose any application for an extension of time for appealing. With the full agreement of counsel, a direction was given that only the extension of time application would be heard on 17 April 2008. Directions were given for the filing of the necessary documents in support of that application.
The applicable principles for an extension of time
[7] The time limit for appealing to this Court against conviction or sentence in criminal proceedings is governed by s 388 of the Crimes Act 1961:
388 Time for appealing
(1)Where a person convicted desires to appeal to the Court of Appeal against his conviction or sentence, or to obtain the leave of that Court so to appeal, or where the Solicitor-General desires to obtain the leave of the Court of Appeal to appeal against the sentence passed on the conviction of any person on indictment, he shall give notice of appeal or notice of his application for leave to appeal in such manner as may be directed by rules of Court within 28 days after the date of conviction or (if the convicted person is not sentenced on the date of conviction) at any time after the conviction, but not later than 28 days after the date of sentence.
(2)The time within which notice of appeal or notice of an application for leave to appeal may be given may be extended at any time by the Court of Appeal.
[8] The discretion to grant an extension of time in s 388(2) was considered by this Court in R v Knight [1998] 1 NZLR 583. Richardson P said (at 587):
… the discretion is not unfettered. The touchstone is the interests of justice in the particular case. The discretion must be exercised in accordance with the policy underlying the legislative provisions. The feature which provides the reason for the time-limit for appealing set by s 388(1) is the interest of society in the final determination of litigation. That necessarily carries through as a powerful consideration in determining whether leave should be granted under s 388(2) to appeal out of time. The overall interests of justice in a particular case may call for balancing the wider interest of society in the finality of decisions against the interest of the individual applicant in having the conviction reviewed. Also relevant is “the respect which is traditionally shown for the liberty of the subject” (R v Hawkins [1997] 1 Cr App R 234 at 239).
[9] After traversing the approaches taken in the United Kingdom, Australia and Canada, Richardson P further said (at 588-589):
Reflecting the policy underlying s 388, the starting point must be the principle that a conviction obtained according to law as it was then understood and applied should stand. Leave to appeal out of time on the ground that there has been a restatement of the applicable law should be granted only where special circumstances can be shown to justify a departure from the principle of finality. The applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given. Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for delay, the extent of the impact on others similarly affected and on the administration of justice, that is floodgates considerations, and the absence of prejudice to the Crown.
[10] The Knight test was recently affirmed as “manifestly … correct” by this Court in R v Lee [2006] 3 NZLR 42 at 72. There Glazebrook J noted that while the “rigidity of the standard required before an extension will be granted fluctuates between jurisdictions, the test in other comparable jurisdictions is similar to the Knight test” (at 72). The Court rejected the Crown submissions that (at 73):
… artificial limits should be put on the balancing exercise so that, where a delay is long and there is prejudice to the Crown, a potential appellant must show substantial merits of a kind that throw real doubt on the propriety of the verdict. There is no doubt that, if there was real concern that a verdict was wrong, the interests of justice will favour the granting of an extension. This does not mean that this threshold must always be met before an extension is granted. It is, as this Court said in Knight, a matter of balancing the relevant factors.
[11] However, the Court agreed with the Crown’s submission that (at 72):
… it cannot have been intended that those seeking to appeal out of time should be in exactly the same position as those appealing within time, no matter how long out of time, no matter what the reasons for the delay, and no matter what the effect may be on any victims or on the due administration of justice.
[12] In balancing the Knight factors, whilst remaining cognisant that this must be a highly context-specific inquiry, the Court in Lee considered that “the strongest factor favouring an extension of time to appeal being granted … must be the strength of the appeal” on the merits (at 73).
[13] It is for the appellant to provide sufficient information for the Court to determine whether it is in the interests of justice for leave to be granted: R v Davis [2007] NZCA 577 at [13]. Where the appellant fails to provide a satisfactory explanation for the delay, “the only ground … on which the delay could be overlooked is if the proposed appeal is overwhelming on the merits”: R v Latifi [2007] NZCA 372 at [4].
[14] In the simplest terms, extension of time applications will routinely reduce to two heads. Firstly, why was the appeal filed late? Secondly, what, if any merit, does the prospective appeal appear to have?
The reasons for the late application
[15] The stated grounds of the application for an extension of time are that, at the conclusion of his trial (at which he was represented by Mr McIvor) Mr Slavich formed an intention to appeal his conviction and sentence; that he promptly communicated this desire to Mr Morgan QC, who was instructed after the trial; that he believed that in accordance with his instructions an appeal against conviction and sentence had been filed within time; and upon learning much later that a Notice of Appeal had not in fact been filed, Mr Slavich thereupon immediately took steps to see such an appeal was filed with the assistance of fresh counsel, Mr Haigh QC. The overall submission is that it is in the interests of justice that an extension of time be granted for the filing of the appeal.
[16] The factual circumstances leading up to this application are as follows. After the convictions were entered against him, Mr Slavich sought the advice of senior counsel, Mr Morgan, as to the prospects of an appeal. Mr Slavich has given a waiver of privilege. We have affidavits from both Mr Morgan and Mr Slavich, although we neither heard, nor were we asked to hear, cross-examination on them.
Mr Slavich’s account
[17] Mr Slavich deposes that he first met with Mr Morgan on 8 December 2006 for a general discussion about the appeal process and possible grounds for an appeal, along with an initial review of the findings in the High Court.
[18] On 14 December 2006, Mr Slavich faxed a memorandum of follow-up issues to Mr Morgan from prison, which contained the following statement: “Please advise date by which appeal must be lodged”.
[19] There was another meeting on 19 December 2006. Mr Slavich agrees that there was a draft Notice of Appeal prepared by Mr Morgan on hand at that meeting, but he says he was advised not to file it until after Christmas. According to Mr Slavich, Mr Morgan assured him that a delay in filing would not create a time issue in this Court.
[20] On 20 December 2006 Mr Slavich wrote to Mr Morgan stating, inter alia:
Thanks for your advice regarding the filing of the Appeal [notice]. I agree, based on your assurance that the change of Counsel and ability to communicate with me on this complex appeal will allow an appeal [notice] to be filed early next month rather than today.
[21] Mr Slavich says that on 30 January 2006 Mr Morgan visited him in prison, recollecting that during their meeting, Mr Morgan confirmed that the initial appeal notice had been filed.
[22] There were further communications between Mr Slavich and Mr Morgan but Mr Slavich maintains that after 30 January, he was acting on the belief that a Notice of Appeal had in fact been filed and that preparation for the appeal was underway. There was an issue as to what, if anything, should be said to the Parole Board on that topic as Mr Slavich was very anxious to be granted home detention.
[23] In a letter to Mr Slavich dated 6 March 2007, Mr Morgan stated that he had fully considered the file, and now considered that Mr Slavich did not have grounds for an appeal. Mr Slavich thereupon decided to seek a second opinion from his current counsel, Mr Haigh.
[24] On 23 April 2007, Mr Slavich was released on home detention. On 30 April 2007, he wrote to Mr Haigh giving him detailed instructions. His letter of instructions included the following statement: “In January 2007 a Notice of Appeal was filed with the Court by Mr Morgan QC … ”.
[25] Based on this statement, Mr Haigh understandably assumed that a Notice of Appeal had been filed. He began work on the case proper. By about July he became puzzled that a Case on Appeal had not been received from this Court, as would usually occur. Upon speaking directly with Mr Morgan as to the whereabouts of the Notice of Appeal, Mr Haigh learnt that one had not in fact been filed.
Mr Morgan's account
[26] Mr Morgan deposes that Mr Slavich’s initial pressing instructions were to get him out of jail as soon as possible. At the first meeting on 8 December 2006, Mr Morgan explained that an appeal could only succeed if there was a miscarriage of justice. He went over the basic grounds upon which such a holding would have to rest. Mr Morgan says Mr Slavich’s instructions at that meeting were to see whether there were grounds for an appeal. By the conclusion of this meeting, it was evident to Mr Morgan that there was a great deal more work to be done before such a conclusion could be drawn.
[27] Mr Morgan took a Notice of Appeal against conviction that he had prepared to a meeting with Mr Slavich on 19 December 2006 for Mr Slavich to sign, if he did not accept the advice that they should postpone filing until after Christmas. Mr Morgan’s view was that a pro forma notice was of little assistance to Mr Slavich and that it was desirable to clarify what the grounds of appeal were, if any, and file a full and proper Notice accordingly. Mr Morgan was aware that this delay would technically put an appeal slightly out of time; however, he thought that with the change of counsel and the cautious and conservative approach to an appeal which was being adopted, there would be little likelihood of the Crown opposing an extension of time. Mr Morgan deposes that Mr Slavich accepted his advice at that time and the Notice of Appeal was deliberately not signed.
[28] Further, Mr Morgan advised Mr Slavich against the idea of filing an appeal without revealing that to the Parole Board.
[29] Mr Morgan continued with his review of Mr Slavich’s file. It should be interpolated here that Mr Slavich had raised the possibility of fresh evidence, which Mr Morgan had been endeavouring to locate and assess. By early March 2007 he had formed the view that Mr Slavich did not have any grounds for an appeal.
[30] At a meeting on 2 March 2007, Mr Morgan conveyed his concerns to Mr Slavich. Mr Morgan deposes:
It was obvious to me from the questions he asked that Mr Slavich was still thinking about filing an appeal notwithstanding my advice and arguing it himself, particularly if the new witness could be found and would swear an affidavit supporting Mr Slavich’s account or possibly fresh evidence from an alleged co-offender, the nature of which Mr Slavich had never really explained to me.
[31] Mr Morgan’s evidence is that during this period:
This was all discussion about whether there were grounds of appeal. It was not discussion about preparing an argument for the hearing of an appeal which had already been filed. I had made it plain to Mr Slavich that there would be no appeal filed by me on his behalf unless I was satisfied that there were grounds for an appeal, I never was and told him exactly that.
[32] Ultimately, as we have noted (at [23] above), on 6 March 2007, Mr Morgan formally indicated that, after a full review of the file, he was of the view that there were no grounds for an appeal. Mr Slavich thereupon promptly instructed Mr Haigh QC.
Discussion
[33] Ms Guy Kidd said that the Crown felt obliged to oppose any extension of time for appealing. There are some features of Mr Morgan’s affidavit which reflect distinctly unsatisfactorily upon Mr Slavich, and which give rise to a real measure of disquiet. On the other hand, Mr Haigh has argued that this is a case of honest but mistaken belief on Mr Slavich’s part and that what had transpired ought to be seen in that light.
[34] To resolve these issues, as a matter of fairness we would almost certainly have required cross-examination. There are some things to be said for Mr Slavich’s account. The early correspondence, though not completely unequivocal, tends to suggest that he thought an appeal had been filed. Remarkable prescience would have been required on his part to have made statements of that sort for use some months later in a leave application. However, there are also matters such as Mr Morgan preparing a Notice of Appeal and taking it to Mr Slavich, but Mr Slavich not signing it.
[35] In the end, although we have distinct misgivings about some of Mr Slavich’s points, we do not consider that we can properly resolve this issue on the basis of the information we presently have. Cross-examination is always very valuable in such instances. For present purposes we give Mr Slavich the benefit of the doubt, and proceed on the footing that Mr Slavich held the honest, though mistaken, belief that an appeal had been lodged. There is no question that once the true situation was revealed, appropriate steps were taken to rectify the situation. Ms Guy Kidd responsibly conceded that the Crown could not raise issues of prejudice in this instance, although she rightly expressed concern that from an administration of justice perspective, an appeal is going to further drag out an already protracted case.
The merits
[36] The background relating to what was found to be quite complex fraudulent conduct is not easily stated.
[37] In essence, the Crown case at trial was that a Mr Booth was defrauded of part of his equity in a Morrinsville property by an impersonation fraud, to which Mr Slavich was a knowing and dishonest participant. It was further said that a Mr Hannon was also defrauded of part of his equity in a Hannon Road property by an impersonation fraud to which Mr Slavich was also a knowing and dishonest participant.
[38] There is no doubt that Mr Orchard, using an alias of “Paul Adams’, impersonated both Mr Booth and Mr Hannon for the purposes of conducting the fraudulent transactions.
[39] The critical issue was whether Mr Slavich knew what was going on, in the relevant sense, or was he just a dupe?
[40] In a police interview conducted on 3 December 2006 in relation to the Booth transaction, Mr Slavich said that he believed, at all material times, that the transaction was being undertaken on behalf of the real Mr Booth.
[41] This created an issue at trial as to whether the Crown had excluded the reasonable possibility that Mr Slavich dealt with a person whom he honestly believed to be Booth. If not, Mr Slavich would necessarily have to be acquitted on the count of using a document with intent to defraud. Mr Haigh suggested that all the other counts would fall consequentially.
[42] On this issue, the trial Judge had before him the evidence of Mr Orchard (who by now was endeavouring to be an honest person and assist the Crown), Mr Slavich, and what was to be gleaned from the various documents pertaining to the transaction. The Judge had made a general finding against Mr Orchard that he was not to be trusted, and his evidence would be accepted only where there was distinct supporting evidence. As it transpired, on this central issue, the Judge accepted Mr Orchard’s evidence, broadly because he said it was consistent with contemporaneous documentary evidence, and because of the “absence of any sworn evidence to support the proposition that any other person was also pretending to be Mr Booth” (at [111]).
[43] As to Mr Slavich’s evidence, the Judge said that he found him “to be implausible”, giving several enumerated reasons for this proposition. One of those reasons was that Mr Slavich accepted that he had met Mr Orchard (using the name of Adams) on a previous occasion. Mr Slavich says he did not state that he had met Mr Orchard prior to the Booth transaction. He has seized on the Judge’s alleged error as what appears to be the principal ground of appeal.
[44] The appeal point is a distinctly thin one. Even assuming, for the purposes of argument, that the Judge was wrong on this particular point, it was only one of a number of reasons why the Judge found Mr Slavich’s evidence to be “implausible”, and why on the issue of “knowledge”, he preferred and accepted the evidence of Mr Orchard.
[45] Nevertheless, we cannot say that the point is frivolous because it goes to the heart of the case: what knowledge did Mr Slavich have that Mr Orchard, impersonating Mr Booth, was acting in the dishonest manner he was? It is part of the evidence which goes to the sole defence Mr Slavich could have had: namely, that he did not know what was going on.
An evidence problem?
[46] During the trial, a particular incident occurred which was handled by the High Court Judge in a most unusual way. There may be an appeal point arising out of this which counsel did not raise before us, but which we felt obliged to remark on during the course of the hearing.
[47] The Crown Solicitor had intended to call a Ms Gibbs. She was to give evidence about the Hannon transactions. She was going to give oral evidence at trial in the usual way. But shortly before the hearing began, she gave birth and the medical advice as to her post-birth condition meant she was not able to travel to Hamilton or attend at some other location to give evidence by video link.
[48] It seems that counsel then got together. They agreed that Ms Gibbs’ “evidence” could be provided in written form based on a transcript of answers given to questions put to her by Mr Douch and Mr McIvor in the course of a telephone conference held during the hearing. The Judge said that neither counsel required her answers to be verified on oath as neither seemed to have thought there were likely to be any credibility issues arising with respect to Ms Gibbs. The Judge would not be part of this process in case there was some disagreement between counsel as to the transcript. The Judge’s Associate would be present and would make a shorthand note of the discussions. She would then produce a comprehensive document which the Judge would take in as trial evidence (see Minute No. 7). This process was actually effected, in this manner.
[49] Initially, Mr Haigh was of the impression that the Judge might not have seen this “transcript”, and taken it into account. At an earlier point of time he asked this panel to direct a report from the trial Judge, prior to the hearing on 17 April, as to whether he had seen the transcript and taken it into account. Mr Haigh now accepts that there are passages in the reasons for verdict judgment which suggest that the Judge had done so.
[50] There is however, another possible issue: whether Ms Gibbs’ evidence had to be sworn or affirmed.
[51] The “historical requirement” in a criminal trial is that all evidence must be sworn: Cross on Evidence (looseleaf) at 4201. That has been the common law rule for centuries, and it has been followed through long usage in New Zealand. The common law rule was modified by statute to allow for affirmations instead of oaths in New Zealand: see the Oaths and Declarations Act 1957.
[52] Prior to the enactment of the Evidence Act 2006, there was a statutory requirement for all evidence to be sworn in s 60 of the Summary Proceedings Act 1957, but not a like provision in Part 12 of the Crimes Act 1961 relating to High Court criminal procedure, and the common law rule has been applied in that forum. The historical exception of allowing an accused to make an unsworn statement at his or her trial was abolished by s 366A of the Crimes Act 1961, which further emphasised the importance of a witness being sworn.
[53] The common law regarded unsworn evidence as not evidence at all. The failure to swear or affirm a witness has been regarded as a material irregularity, which cannot be cured after the event, thus necessitating a new trial: Sharman [1998] 1 Cr. App. R. 406.
[54] Under s 77 of the Evidence Act 2006, which materially reflects the common law (New Zealand Law Commission Evidence Code and Commentary (NZLC R55.2 1999) at 195), every witness must still take an oath or make an affirmation before giving evidence unless a specific exception is made to these general requirements with the permission of the trial Judge: see s 77(4). If that course is followed, the Judge must give the witness certain warnings. The new Act was not in force at the time of this trial, so the Judge could not have given an exception, even if he was minded to.
[55] As to evidence “by consent”, prior to its repeal by s 215 of the Evidence Act 2006, s 15 of the Evidence Act (No. 2) 1980 provided, in a part of the Act dealing with hearsay:
… in any proceeding where direct oral evidence of a fact or an opinion would be admissible, any statement, whether oral or in a document, made by a person and tending to establish that fact or opinion shall be admissible as evidence of that fact or opinion, with the consent of all the parties to the proceeding.
[56] The Evidence Act 2006 now provides, by s 9:
9 Admission by agreement
(1) In any proceeding, the Judge may,—
(a)with the written or oral agreement of all parties, admit evidence that is not otherwise admissible; and
(b)admit evidence offered in any form or way agreed by all parties.
(2)In a criminal proceeding, a defendant may admit any fact alleged against that defendant so as to dispense with proof of that fact.
(3)In a criminal proceeding, the prosecution may admit any fact so as to dispense with proof of that fact.
[57] What is not made explicit is whether the “consent evidence” so tendered is nevertheless subject to s 77 of the Act.
[58] It may be thought surprising that an informal, out-of-court “deposition” is not required to be confirmed as to its truthfulness. Indeed the way out-of-court pre-trial depositions schemes work in other jurisdictions generally requires such a confirmation.
[59] What may at first blush appear to be simply “bothersome” and unnecessary in a case of consent, may nevertheless be a fundamental constitutional safeguard for an accused, and the oath or undertaking to tell the truth is also the source of the ability to prosecute a perjurer.
[60] If Ms Gibbs’ evidence was required to be sworn, then it was not properly received. There was a faint suggestion that perhaps this exercise should be seen as having come within s 369 of the Crimes Act 1961. But plainly this was not a s 369 situation, nor was it treated as such by the Court. In any event, the usual process would have had to have been followed in that respect.
[61] If Ms Gibbs’ written transcript was improperly received as evidence, that may have implications for the trial as a whole. At first blush, it does appear to be material which the Judge drew on in some respects. Moreover, it is not inconceivable that on closer analysis some actual findings and inferences may rest upon it.
[62] We do not have to decide this point. And counsel were not in a position to assist us with argument at the hearing. In the circumstances, this panel merely notes the point. It will be entirely a matter for counsel as to what if anything is to be made of this factor as an appeal point, if and when the appeal proceeds. Further, we express no view as to whether Ms Gibbs’ evidence could be said to have been quite immaterial; the fact that the Crown thought that it was necessary to have it before the Court may suggest that it was of some moment.
Conclusion
[63] We have reached the view that we are bound to treat the time factor in this application as one involving an honest but mistaken belief that an appeal had been filed. In those circumstances, the strength of the case to be advanced is not required to be as strong as cases where there was no reason for delay. We are not at all sanguine about Mr Slavich’s prospects of success, but he has a point which is fairly arguable, and perhaps most importantly goes directly to the heart of the prosecution: namely whether he did know what Mr Orchard was about, or whether he was himself just another dupe. There may also be a concern, which we cannot presently properly determine, over the status of Ms Gibbs’ evidence.
[64] In the circumstances we grant an extension of time for appealing. We direct that:
· full grounds of appeal are to be filed and served within 14 days of the date of delivery of this judgment;
· the appellant's submissions are to be filed within 14 days of the date of filing of the points on appeal;
· the Crown submissions are to be filed within 14 days of the filing of the appellant's submissions;
· as soon as the submissions are filed the Registrar is to allocate a fixture for the hearing of the appeal.
Solicitors:
Crown Law Office, Wellington
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