Slavich v Hamilton District Court - [2025] NZHC 1358

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CIV-2024-419-231

[2025] NZHC 1358

UNDER the Judicial Review Procedure Act 2016 and Part 30 of the High Court Rules 2016

IN THE MATTER OF

an application for judicial review

BETWEEN

JOHN KENNETH SLAVICH

Applicant

AND

HAMILTON DISTRICT COURT

Respondent

Hearing: On the papers

Appearances:

Applicant in person

J S Gurnick (counsel assisting) O Kiel for Respondent

Judgment:

28 May 2025

JUDGMENT OF BECROFT J

This judgment was delivered by me on 28 May 2025 at 3pm pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar

Solicitors/Counsel: Crown Law, Wellington J S Gurnick, Hamilton

SLAVICH v HAMILTON DISTRICT COURT [2025] NZHC 1358 [28 May 2025]

What this judicial review application is about

[1] In October 2006, John Kenneth Slavich, a Hamilton accountant, was found guilty after a Judge-alone High Court trial before Heath J of six charges relating to unlawfully participating in two fraudulent loan transactions.1 He was sentenced to 27 months’ imprisonment and ordered to pay $60,000 in reparation.2

[2] Mr Slavich has always protested his innocence. He exhausted all his appeal rights against his conviction with the Court of Appeal dismissing his final appeal in 2009.3 The Supreme Court subsequently dismissed his application for leave to appeal.4

[3] One of the witnesses at Mr Slavich’s trial was Mr Leslie Orchard. Mr Orchard was a major participant in the two frauds. On 17 November 2022, Mr Slavich filed a charging document in the Hamilton District Court against Mr Orchard charging him with perjury. A District Court Judge determined that document should not be accepted for filing.5

[4] On 12 September 2024, Mr Slavich filed judicial review proceedings of the Judge’s decision. In short, he alleges that the Judge did not comply with the relevant statutory provision by failing to consider the evidence filed by Mr Slavich—evidence that Mr Slavich considers justifies a trial.

[5] The respondent, the Hamilton District Court, indicated it would abide. The Court appointed Mr Gurnick as counsel to assist on 4 November 2024. He filed helpful and considered written submissions advising that the Court would be justified in declining Mr Slavich’s application for judicial review. Mr Slavich filed his own submissions in reply. It was agreed, as recorded in a minute of Gardiner J, that the

1      R v Slavich HC Hamilton CRI-2006-419-89 12 October 2006. Mr Slavich was convicted of using a document with intent to defraud (x2), forgery (x2), uttering a forged document, and making a document with lawful authority.
2      R v Slavich HC Hamilton CRI-2006-419-89, 21 November 2006.
3      R v Slavich [2009] NZCA 188.
4      Slavich v R [2009] NZSC 87.
5      Slavich v Eckersley DC Hamilton, 24 July 2024. The decision has not been assigned a CRI number.

matter be considered and decided on the papers.6 What follows is that “on the papers” decision.

Factual background

[6] Some consideration of the facts is unavoidable in order to resolve…

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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Details

Case: [2025] NZHC 1358
Decision Date: 28 May 2025

CaseChat Overview and Summary

In the High Court of New Zealand, John Kenneth Slavich filed an application for judicial review against the Hamilton District Court, challenging the District Court's decision to reject his private prosecution charging document against Leslie Orchard for perjury. Slavich, who was convicted in 2006 of participating in fraudulent loan transactions, believes he is innocent and that Orchard, a key witness against him, committed perjury. The crux of the judicial review was whether the District Court Judge correctly applied the statutory criteria when deciding not to accept Slavich's charging document for filing.

The primary legal issue was whether the District Court Judge properly considered the statutory criteria set out in section 26 of the Criminal Procedure Act 2011. Specifically, the Court had to determine if the Judge correctly assessed whether the evidence provided by Slavich was sufficient to justify a trial or if the prosecution was an abuse of process. Slavich argued that the Judge failed to consider the evidence he provided, which he believed demonstrated that Orchard perjured himself. The Court needed to examine whether the District Court Judge's decision was legally sound and whether it adhered to the statutory requirements.

The Court found that the District Court Judge did not correctly apply the statutory criteria. The Judge focused on the previous High Court decision convicting Slavich rather than assessing the sufficiency of the new evidence Slavich proposed. This oversight was a failure to consider a relevant and mandatory statutory consideration, constituting an error of law. Although the District Court Judge's decision was in error, the Court concluded that there was no point in referring the matter back for reconsideration because the proposed evidence, even if considered, would not be admissible due to its hearsay nature. Specifically, the evidence relied upon by Slavich, which included statements from a journalist and a private investigator, would not meet the corroboration requirements under section 112 of the Crimes Act 1961. Consequently, the Court dismissed Slavich's application for judicial review, upholding the District Court Judge's decision.

The Court, in its judgment, underscored the importance of adhering to statutory criteria when deciding on the filing of a private prosecution. It also highlighted the necessity for proposed evidence to meet legal standards, particularly the requirement for corroboration in perjury cases. Slavich was advised that presenting his concerns to the police or the Criminal Cases Review Commission might be more effective avenues for addressing his claims of innocence and alleged perjury.

Orders