Slavich v Judicial Conduct Commissioner
[2012] NZCA 31
•22 February 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA626/2011 [2012] NZCA 31 |
| BETWEEN JOHN KENNETH SLAVICH |
| AND JUDICIAL CONDUCT COMMISSIONER |
| AND PAUL HEATH |
| Hearing: 7 February 2012 |
| Court: Glazebrook, Wild and White JJ |
| Appearances: Applicant in Person |
| Judgment: 22 February 2012 at 11 am |
JUDGMENT OF THE COURT
AThe application for an extension of time within which to appeal is dismissed.
BThe applicant is to pay the respondents’ costs (one set of costs) for a standard application on a band A basis with usual disbursements.
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REASONS OF THE COURT
(Given by Wild J)
Mr Slavich applies for an extension of time to appeal. His application is pursuant to r 29A of the Court of Appeal (Civil) Rules 2005. Mr Slavich wishes to appeal a judgment delivered by Andrews J on 14 July 2011.[1]
[1]Slavich v Judicial Conduct Commissioner HC Hamilton CIV-2010-419-975, 14 July 2011.
Mr Slavich appealed that judgment on 12 August 2011 — within time — but failed to enclose the required filing fee with his notice of appeal. Consequently, the Court did not accept his notice of appeal.
Mr Slavich applied on 22 September 2011 for an extension of time within which again to file his appeal. He claimed that his failure to proffer the filing fee was a “simple error” on his part, with no resulting prejudice to the respondents.
Mr Slavich now requires an extension of time to appeal and the well established principles under r 29A apply. Of those principles, the length of the delay here is not of concern, and we are prepared to accept that not including the filing fee was a simple mistake. Mr Gunn does not contend that any real prejudice has resulted to the prospective respondents from Mr Slavich’s delay.
However, in our view Mr Slavich’s proposed appeal lacks any merit and has no prospect of success. The seven separate applications for judicial review and the proceeding alleging misfeasance in public office that Andrews J struck out in her 14 July 2011 judgment were all challenges to the criminal processes, including name suppression, that culminated in Mr Slavich’s conviction for fraud on 12 October 2006 following a trial before a Judge alone. Mr Slavich unsuccessfully appealed his conviction to this Court.[2] The Supreme Court subsequently refused Mr Slavich leave to appeal.[3]
[2] R v Slavich [2009] NZCA 188.
[3] Slavich v R [2009] NZSC 87.
It became apparent from Mr Slavich’s oral submissions to us that the focus of his proposed appeal would be the admissibility of the evidence of the witness called, at the time of Mr Slavich’s trial, Ms Carolyn Gibbs (now Mrs Calder). The admissibility of Ms Gibbs’ evidence was comprehensively argued by Mr Slavich before this Court on his appeal against conviction. He was represented on that appeal by Mr J Haigh QC, with him Mr B H McCarthy. Neither were counsel for Mr Slavich at his trial. This Court’s judgment deals with the issue of Ms Gibbs’ evidence at [9]–[27]. The Court held that Mr Slavich could consent, and had consented, to the admission of Ms Gibbs’ evidence at his trial. In the course of so ruling, this Court said this:
[17] It is important to emphasise certain features. First, everything occurred with Mr Slavich’s consent. Indeed, he was keen to have the transcript in evidence, as he considered some of Ms Gibbs’s answers to be supportive of the defence he was running. Secondly, none of Ms Gibbs’s evidence became evidence in the trial until the entire process was completed and both sides had consented. Thirdly, there is no suggestion that Mr Slavich’s trial counsel exceeded his authority or was in any way incompetent in suggesting or agreeing to the procedure followed. Fourthly, at no stage did anyone request Ms Gibbs to be sworn. Fifthly, both sides, in their final submissions, relied on parts of Ms Gibbs’s evidence.
In dismissing Mr Slavich’s two separate applications for leave to appeal, the Supreme Court stated:
[2] Mr Slavich now seeks to appeal to this Court raising many detailed but ultimately unpersuasive arguments designed to cast doubt on the Judge’s findings. Those findings have been confirmed by the Court of Appeal after hearing argument presented for the applicant by very experienced senior counsel. The applicant is, in essence, asking this Court to further review the facts. This is not our role in the absence of something suggesting that there may have been a miscarriage of justice, which we are satisfied has not occurred in this case.
[3] In particular, addressing a matter given special emphasis by the applicant, we are satisfied that it is not reasonably arguable that the Judge has fallen into error concerning the evidence of Mrs Calder.
The judgment of Andrews J contains a summary of the allegations in the eight proceedings the Judge struck out. All those allegations are challenges to the criminal processes that preceded Mr Slavich’s conviction. In particular, Andrews J held that all seven applications for judicial review were “collateral attacks on the decisions of the Court of Appeal and Supreme Court, and are abuses of process”.[4]
[4] At [81] and [82].
We are satisfied that Mr Slavich’s proposed appeal against a judgment that struck out challenges in a civil court to criminal processes already upheld by this Court and by the Supreme Court has no prospect of success.
There is no point in granting an extension of time to bring a hopeless appeal.
We accordingly dismiss Mr Slavich’s application for an extension of time within which to appeal.
Mr Slavich is to pay the respondents’ costs (one set of costs) for a standard application on a band A basis with usual disbursements.
Solicitors:
Crown Law Office, Wellington for Respondents
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