Slavich v Hamilton District Court
[2025] NZHC 1358
•28 May 2025
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 Mr Slavich’s application. I keep it as brief as possible.
The trial
[7] As indicated, Mr Slavich’s trial revolved around two fraudulent transactions. Relevant to this application is the “Booth transaction”—as it was described by the trial Judge. It was a fraud carried out against a Mr Booth. In short, a mortgage was placed over Mr Booth’s previously unencumbered property in Morrinsville (Morrinsville property) to secure a $75,000 loan none of which was advanced to Mr Booth himself who knew nothing of the transaction. Approximately $30,000 was paid to a company associated with Mr Slavich and $44,000 was paid to an individual who was a conduit to channel money to Mr Orchard. The balance covered the solicitor’s fees.
[8] Mr Slavich played the following role in the transaction. First, he provided a funding proposal summary to an employee of the lender Basecorp Finance Ltd. The proposal disclosed that Mr Booth was the borrower. The security offered was a first mortgage over the Morrinsville property. The purpose of the loan was described as to assist a friend of Mr Booth’s with a new project.
[9] Second, after Basecorp had accepted and processed the application for finance, it instructed an Auckland solicitor to act on the transaction. That solicitor then received a facsimile from Mr Slavich’s firm of chartered accountants with instructions for the disbursement of the Basecorp funds (authority to distribute funds). Mr Slavich accepted that he would have undertaken that task.
6 Slavich v Hamilton District Court CIV-2024-419-231, 26 February 2025.
[10] Mr Slavich’s position at trial was that he believed at all material times that the transaction was being undertaken on behalf of the real Mr Booth. He claimed that he had met Mr Booth in person at a Burger King in the presence of “Mr Adams”. Mr Adams was another name that Mr Orchard used for himself.
[11] The Judge rejected Mr Slavich’s evidence that he honestly believed that he had met the real Mr Booth. Accordingly, Mr Slavich was convicted of using a document with intent to defraud in respect of the funding proposal summary he had provided to Basecorp. He was also convicted of forgery for falsely making the authority to distribute funds.
[12] One reason for the Judge rejecting Mr Slavich’s evidence that he had met the real Mr Booth is because Mr Orchard gave evidence that he (Mr Orchard) was the sole impersonator of Mr Booth. Mr Orchard further said that he met Mr Slavich at Burger King and Mr McKelvy, an associate of his, had introduced him to Mr Slavich as “Mr Booth”. Because Mr Booth already knew Mr Orchard as “Mr Adams” from previous encounters, the Judge found that Mr Slavich must have known that Mr Orchard was impersonating Mr Booth.
The subsequent Stuff investigation and article
[13] Some years later, a Stuff journalist, Mr Steve Kilgallon, investigated Mr Slavich’s convictions. The resulting article was published on 8 February 2020. The investigation included an interview with Mr Orchard. Mr Orchard is quoted as saying that Mr Slavich, although guilty, was a “scapegoat”. The article also claims that Mr McKelvy, Mr Orchard’s co-conspirator, claims Mr Slavich is innocent.
[14] The article records that the police case was that when Mr Orchard (as “Mr Booth”) met Mr Slavich at Burger King, they were there by themselves. According to the article, Mr McKelvy now confirms he was present and performed introductions. I note that the trial Judge accepted Mr McKelvy was there in his judgment, so nothing turns on this point. However, the article also says Mr McKelvy, Mr Slavich and Mr Orchard all now agree a fourth man was there. It is said that the fourth man introduced himself as Mr Justin Booth who needed a loan. The article says this man was Tony
Tuhoro, a friend of Mr Orchard’s, who described him as “a bit of a hanger-on who wanted to make a quick buck”. The article goes on to record:
In Orchard's diary for [the date of the Burger King meeting] is an entry reminding him to pay $2000 to "TT". Orchard had a habit of using "his boys" to front for him during deals when his web of identities would otherwise be difficult to maintain.
Police never interviewed nor charged Tuhoro.
But in 2009, a private investigator engaged by Slavich tracked Tuhoro down and obtained a reluctant admission he was there that day.
If John Slavich knew he was about to commit identity fraud, why did he need to have an extra actor along pretending to be Justin Booth?
[15] In response to that article, Mr Slavich filed the charging documents against Mr Orchard.
The private prosecution
[16] The charging document filed by Mr Slavich alleges that he has good cause to suspect that Mr Orchard committed perjury when testifying during Mr Slavich’s trial. The offence description refers to Mr Orchard’s testimony that he was the impersonator of Mr Booth and that no one else was at the meeting pretending to be Mr Booth. It also mentions Mr Orchard’s testimony that Mr Slavich knew he was impersonating Mr Booth and his (Mr Orchard’s) testimony that the proposed “Mr Booth” identity fraud was discussed at that Burger King meeting.
[17] Accompanying that document was a “formal statement” and four exhibits. The statement gives further detail, at times incoherently, as to how Mr Orchard committed perjury. The four exhibits attached are: segments of Heath J’s reasons for verdicts decision after the Judge-alone trial; the index to the Court of Appeal casebook; the Stuff article; and, an email from Mr Kilgallon to Mr Slavich dated 24 March 2022 saying that he cannot put his name to a brief of evidence or agree to be called as a witness (as his employer would not allow it), although he stood by everything in the article.
The law as to a private prosecution
[18]Section 26 of the Criminal Procedure Act 2011 (CPA), provides as follows:
26 Private prosecutions
(1)If a person who is proposing to commence a private prosecution seeks to file a charging document, the Registrar may—
(a)accept the charging document for filing; or
(b)refer the matter to a District Court Judge for a direction that the person proposing to commence the proceeding file formal statements, and the exhibits referred to in those statements, that form the evidence that the person proposes to call at trial or such part of that evidence that the person considers is sufficient to justify a trial.
(2)The Registrar must refer formal statements and exhibits that are filed in accordance with subsection (1)(b) to a District Court Judge, who must determine whether the charging document should be accepted for filing.
(3)A Judge may issue a direction that a charging document must not be accepted for filing if he or she considers that—
(a)the evidence provided by the proposed private prosecutor in accordance with subsection (1)(b) is insufficient to justify a trial; or
(b)the proposed prosecution is otherwise an abuse of process.
(4)If the Judge determines under subsection (2) that the charging document should not be accepted for filing, the Registrar must—
(a)notify the proposed private prosecutor that the charging document will not be accepted for filing; and
(b)retain a copy of the proposed charging document.
(5)Nothing in this section limits the power of a Registrar to refuse to accept a charging document for want of form.
[19] It will be seen that the charging document can either be accepted for filing by the Registrar or referred to a Judge.
[20] Here, the matter was referred to a District Court Judge. On 19 April 2023, Judge Crowley directed that pursuant to s 26(1)(b) of the CPA, Mr Slavich was to file formal statements of all witnesses intended to be called at the trial. It may be that the Judge was not provided with the statement and exhibits already filed by Mr Slavich five months previously. In response to this minute, Mr Slavich refiled his statement and exhibits.
[21] After some procedural “hiccups”, not relevant to this decision, Judge Crowley decided that the charging document should not be accepted for filing.7
District Court decision rejecting the proposed private prosecution for filing
[22] The District Court Judge’s reasons focussed entirely on the High Court decision convicting Mr Slavich. He noted there were seven reasons set out in that judgment for the verdicts. He observed that the reasons need to be read in full. However, the District Court Judge said that the key reasons were that the funds were dispersed in an unusual way and never passed through the trust account of the lawyer acting for the borrower.
[23] The Judge also noted that in accepting Mr Orchard’s evidence to the extent necessary to convict Mr Slavich, Heath J was well aware of the risks in accepting Mr Orchard’s evidence.
[24] The District Court Judge therefore concluded that in the circumstances where Heath J had found beyond reasonable doubt that Mr Orchard’s evidence on the relevant issues was credible and reliable, there was no reasonable prospect that another Judge, or indeed a jury, would or could find beyond reasonable doubt that Mr Orchard had been proved to have perjured himself.
Was the District Court decision in error?
[25] It is clear that under s 26(3)(a) and (b) of the CPA, the grounds for “not accepting a charging document for filing are confined to two situations. First, when the evidence provided by the proposed private prosecutor is insufficient to justify a trial. Second, when the proposed prosecution is otherwise an abuse of process. It can be seen that the District Court Judge, with great respect, did not advert to or consider either of these two grounds. Instead, he analysed the likelihood of Mr Orchard being convicted of perjury by revisiting the High Court decision. He certainly did not mention Mr Slavich’s proposed evidence, let alone consider its sufficiency to justify a
7 Slavich v Eckersley, above n 5.
trial. Neither is there any suggestion that he relied on the alternative ground, under (b), of abuse of process.
[26] Mr Gurnick, in his helpful submissions, emphasised that generally a s 26 judicial decision should focus on the evidence proposed to be called by the private prosecutor, not the words used on the charging document and not matters going to the existence of a potential defence—unless, perhaps, it is of some fundamental jurisdictional kind.8
[27] Under s 26(3)(b), the one thing therefore that the District Court Judge had to do was to focus on the evidence that Mr Slavich proposed to call. In fact, that was the one thing that he did not do. A Judge may, in an unusual case, consider additional matters,9 but there must be consideration of the sufficiency of the proposed evidence. I accept the submission by Mr Gurnick that Judge Crowley appears to have erred by simply focussing on the decision of Heath J which found Mr Slavich guilty. As Mr Slavich submits, the District Court judgment makes no assessment of the fresh evidence not previously available to the earlier Courts. He further submits the judgment therefore ignores a relevant consideration—that is the 2022 formal statement he filed and the exhibits. I agree.
[28] I also add that simply analysing the reasoning of the High Court as a means of establishing whether this private prosecution should proceed is unhelpful. Sometimes those convicted of perjury will have provided evidence at a trial, which at the time was believed and accepted as credible. That is the essence of perjury. Perjured witnesses can be deceitful, sometimes convincingly so. To that extent, the learned Judge misdirected himself by focussing on the reasons for Mr Slavich’s credibility expressed in a previous case rather than on the evidence that Mr Slavich proposed to call. For the sake of fullness, I note that I have considered whether the Judge’s reasoning could nevertheless come within subs (3)(b). For instance, this private prosecution is sought to be launched nearly 20 years after the event. However, I can see no basis for so concluding. The District Court Judge clearly did not rely on that ground.
8 Stephanie Bishop and others Garrow and Turkington’s Criminal Law in New Zealand (online ed, LexisNexis) at [CPA26.1]. See also Mann v Wilson [2024] NZCA 181 at [73].
9 S v Vector Ltd [2020] NZSC 97, [2021] 1 NZLR 1 at [71].
[29] This must be classified as a failure to take into account a relevant, indeed mandatory, statutory consideration. It therefore constitutes an error of law which is a ground for allowing the application for review.
[30] I have to say the District Court Judge’s omission is so significant that, in his defence, I wonder if the formal statement and exhibits were even brought to his attention. That said, given that he had made a direction that they be filed, it is hard to think he would not have enquired with the Registrar as to what was filed in relation to that direction, or to investigate what might have been filed previously. That would have resulted in him seeing what was filed in November 2022. But it may be that he simply did not know of the existence of the evidence, and I am reluctant to be critical.
What is the appropriate remedy?
[31] In the ordinary course, I would quash the District Court Judge’s decision and refer it back to him for reconsideration that takes into account the matters set out in s 26. However, administrative law remedies are discretionary. In rare cases, where justice so requires, instead of setting aside a decision, the Courts will make an order which effectively determines the result of the exercise of a power.10
[32] One instance where this is justified, is where only one lawful result can possibly be envisaged.11 This is such a case. There is no point in sending this decision back for reconsideration.
[33] I say that because the proposed evidence, in its current form, could never be admitted as evidence at a Court. That is crystal clear. Understandably, Mr Slavich is buoyed by the Stuff investigation and the research carried out by the journalist and what he says is fresh evidence. I acknowledge that the article was published in 2020. Mr Slavich’s trial was in 2006. Indeed, he may be correct to call the evidence “fresh”.
10 See Graham Taylor Judicial Review: A New Zealand Perspective (4th ed, Wellington, 2018) at 172.
11 See Boler v Building Industry Authority [2004] NZAR 604 (HC) where this option was discussed but not applied.
[34] Mr Slavich accepts that the journalist has indicated he does not wish to give evidence. I understand that Mr Slavich believes that could be cured by him seeking, and the Court issuing, a witness subpoena for Mr Kilgallon so that he could give evidence in line with his article. But that will not fix the hearsay problem with that evidence which I will now outline. I hope that Mr Slavich will understand.
[35] The journalist is quoting the comments of others—that is Mr Orchard and Mr McKelvy. He is also quoting what a private investigator was allegedly told by Mr Tuhoro. All of that is hearsay; in fact double hearsay in the case of what Mr Tuhoro told a private investigator who then told the journalist. They are all statements made by people, who Mr Slavich does not propose to call in evidence, admitted to prove the truth of their contents. In his submissions in reply to those from Mr Grunick, Mr Slavich says there is a misunderstanding. He relies not on the article but the evidence Mr Kilgallon would give confirming his sources and the reliability of the article. But even if Mr Kilgallon was subpoenaed, he would not be allowed to give evidence of what others told him to establish the truth of those comments. His proposed or foreshadowed “evidence” is outright inadmissible. The makers of those statements would need to give evidence themselves. Just so Mr Slavich is clear, their evidence cannot come through Mr Kilgallon.
[36]This is exactly the point made by counsel assisting the Court. I agree.
[37] Further, Mr Gurnick has pointed out that such evidence is crucial in any prosecution, private or otherwise, for perjury. This is because of s 112 of the Crimes Act 1961, which provides:
112 Evidence of perjury, false oath, or false statement
No one shall be convicted of perjury, or of any offence against section 110 or section 111, on the evidence of 1 witness only, unless the evidence of that witness is corroborated in some material particular by evidence implicating the defendant.
[38] Mr Gurnick submits, and I accept, that the elements of perjury that Mr Slavich must prove are:
(a)that Mr Orchard gave evidence as a witness;
(b)on oath;
(c)that the evidence was false;
(d)that Mr Orchard knew the evidence to be false;
(e)that in so doing Mr Orchard intended to mislead the Court; and
(f)as provided in s 112, where on the evidence of one witness only (presumably Mr Slavich), the evidence must be corroborated in some material particular by evidence implicating Mr Orchard.
[39] Mr Slavich, who proposes to give evidence of Mr Orchards’ perjury, must therefore have witness statements from at least one corroborating witness. The journalist’s “evidence” is hearsay and would not be sufficient. In other words, so Mr Slavich understands, the journalist cannot be the corroborating witness in these circumstances.
[40] Therefore, even though Judge Crowley may not have properly considered the statement and exhibits under s 26(3)(a) of the CPA, when that exercise is properly carried out, it is inevitable the determination will be that the evidence is insufficient to justify a trial. That means that Judge Crowley’s decision was right, albeit reached on an unlawful basis.
Conclusion
[41] For the above reasons, Mr Slavich’s application for judicial review must be and is dismissed.
[42]As I postscript, I add the following:
(a)I understand Mr Slavich’s excitement, if that be the word, that an independent investigative journalist, whom I understand to be reputable, has raised doubts regarding the legitimacy of his conviction.
(b)Initiating a private prosecution against Mr Orchard, even if he was the pivotal witness against Mr Slavich, upon which his convictions depended, is a “long shot”. No private prosecution could be initiated unless Mr Slavich has proposed evidence from those in a position to know firsthand that Mr Orchard’s evidence was materially false.
(c)In my respectful view, Mr Slavich would be better, with the information that is contained in the Stuff article, to present it to the police with the request for further investigation. That would be entirely a matter for the police. Indeed, Mr Slavich may already have pursued this option. I know not. Equally, Mr Slavich could lodge these more recently emerging concerns with the recently constituted Criminal Cases Review Commission for its investigation. For all I know, Mr Slavich may already have done that also.
Becroft J
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