Slavich v R
[2011] NZCA 586
•22 November 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA461/2007 [2011] NZCA 586 |
| BETWEEN JOHN KENNETH SLAVICH |
| AND THE QUEEN |
| Court: Chambers, Gendall and Allan JJ |
| Counsel: Appellant in Person |
| Judgment: 22 November 2011 at 2 pm |
JUDGMENT OF THE COURT
The application to recall this Court’s judgment ([2009] NZCA 188) is dismissed.
REASONS OF THE COURT
(Given by Chambers J)
John Slavich seeks to have recalled this Court’s decision dismissing his appeal against conviction, delivered as long ago as 15 May 2009.[1] After we had delivered our judgment, Mr Slavich sought leave to appeal to the Supreme Court. That Court dismissed his application for leave.[2] In the course of their reasons, the Supreme Court said it was satisfied there had not been “a miscarriage of justice”.[3] The Court added:
[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.
[1] R v Slavich [2009] NZCA 188.
[2] Slavich v R [2009] NZSC 87.
[3] At [2].
That was a reference to evidence given by a particular Crown witness, Mrs Calder, who was unable to give her evidence orally in court owing to the fact she was about to give birth and was facing medical complications. There was some confusion as to exactly which version of her brief of evidence came into evidence. This was a matter we explored at length in our judgment. We were satisfied that no miscarriage of justice arose in that respect, a view with which the Supreme Court obviously agreed.
After the Supreme Court declined leave to appeal, Mr Slavich applied to that Court again for recall of that decision. The Supreme Court declined to recall it and on the topic of Mrs Calder’s evidence said this:[4]
[2] He seeks to raise again one factual matter previously put before this Court, namely whether the trial Judge who found him guilty had considered both a brief of evidence of one of the witnesses and a transcript of answers given by that witness during a telephone conference. It is contended again that the Judge did not consider the latter, in which the witness is said to have contradicted in some respects what she said in the former.
[3[ The material to which the applicant directs attention is not fresh. It was all before the Court of Appeal which was satisfied that the Judge considered the content of both documents. That conclusion is hardly surprising as the Judge directly and expressly referred to both in his Reasons for Verdict.[5] He expressly refers to the answers given by the witness, which is clearly a reference to answers given to questions put during the conference.
[4] Slavich v R [2011] NZSC 103.
[5] R v Slavich HC Hamilton CRI-2006-419-89, 12 October 2006 at [15]—[17].
Following his rebuff in the Supreme Court, Mr Slavich has now sought to have us recall our decision on essentially the same grounds. We decline to recall our decision, for the same reasons the Supreme Court declined to recall its. We would also observe that it would very rarely be appropriate for this Court to recall one of its decisions where the Supreme Court had pronounced upon it.
Mr Slavich is abusing the recall jurisdiction. This Court’s inherent power to revisit its decisions is exercised only in exceptional circumstances when required by the interests of justice.[6] This is not such a case.
[6] R v Smith [2003] 3 NZLR 617 (CA).
The confusion over the two versions of Mrs Calder’s evidence and the question of whether the transcript of her cross-examination came into evidence have been the subject of detailed investigation already. Nothing Mr Slavich has included in the current application leads us to have any concern about any of the decisions made in this case. There is nothing to suggest a miscarriage of justice may have occurred.
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