Slavich v Wellington District Court
[2023] NZHC 251
•21 February 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CIV-2022-485-593
[2023] NZHC 251
UNDER Section 8 of the Judicature Review Procedures Act 2016 IN THE MATTER
of an application for Judicial Review
BETWEEN
JOHN KENNETH SLAVICH
Plaintiff
AND
WELLINGTON DISTRICT COURT
First Respondent
ATTORNEY-GENERAL
Second Respondent
Hearing: 17 February 2023 Appearances:
Plaintiff in Person
P J Gunn and I M McGlone for Respondents
Judgment:
21 February 2023
JUDGMENT OF McQUEEN J
Introduction
[1] In March 2022, Mr Slavich sought to file a charging document in the Wellington District Court under s 14 of the Criminal Procedure Act 2011. It alleged that Mr Orr, Chief Legal Counsel for the Ministry of Justice, had wilfully attempted to pervert or defeat the course of justice by his advice in three reports to the Minister of Justice that there was no proper basis for the Governor-General to refer Mr Slavich’s convictions back to the Court of Appeal. Mr Slavich had sought the exercise of this power in accordance with the royal prerogative of mercy then available under s 406 of the Crimes Act 1961.
SLAVICH v WELLINGTON DISTRICT COURT [2023] NZHC 251 [21 February 2023]
[2] District Court Judge Mill, in a decision dated 31 March 2022, rejected the charging document for filing on the basis that, pursuant to s 26(3)(a) of the Criminal Procedure Act 2011, there was insufficient evidence to justify a trial.1 Mr Slavich has now commenced a proceeding in which he seeks judicial review of that decision. Judicial review is the appropriate mechanism as there is no right of appeal against a judge’s refusal under s 26 to accept a charging document for filing.2
[3] The Attorney-General has applied to strike out Mr Slavich’s statement of claim and seeks an award of costs. In that alternative, the Attorney applies for orders for security of costs of $7,500 or such other sum as the Court may direct to be paid into court by Mr Slavich, together with an order staying the proceedings until security for costs has been paid.
[4] Mr Slavich opposes the application to strike out and has applied to consolidate two proceedings in the Hamilton High Court with this judicial review proceeding.3 The Attorney-General opposes that application.
[5] The first respondent, the Wellington District Court, abides the decision of the Court.
Background
Criminal trial and Mr Slavich’s challenges to his convictions
[6] In 2006, Mr Slavich was found guilty by Heath J (sitting alone) on several fraud charges.4 He does not accept that he was properly convicted.
[7] Mr Slavich subsequently appealed against his convictions. The Court of Appeal granted his application to extend the time for appealing, then heard and dismissed the appeal.5 Mr Slavich unsuccessfully sought leave to appeal to the
1 Decision of Judge I G Mill, Wellington District Court, 31 March 2022.
2 Mitchell v Tyson [2016] NZHC 2210.
3 Slavich v Collins & Ors HC Hamilton CIV-2022-419-291 and Slavich v Criminal Cases Review Commission HC Hamilton CIV-2022-419-291.
4 R v Slavich HC Hamilton CRI-2006-419-89, 12 October 2006. Mr Slavich served his sentence of imprisonment.
5 R v Slavich [2008] NZCA 116; and R v Slavich [2009] NZCA 188.
Supreme Court.6 Mr Slavich, unhappy with those outcomes, has since engaged in numerous legal proceedings seeking to challenge, by various means, his convictions. This has included:
(a)applications to recall judgments;
(b)applications for judicial review of decisions of the Judicial Conduct Commissioner rejecting complaints made against several judges;
(c)prosecutions commenced in the District Court alleging criminal conduct by the Crown Solicitor at Hamilton and members of his firm; and
(d)prosecutions alleging criminal conduct against the Solicitor-General, Deputy Solicitors-General and other Crown counsel.
[8] In 2013, the Attorney-General successfully applied to the High Court for an order under s 88B of the Judicature Act 1908, in effect declaring that Mr Slavich was a “vexatious litigant”.7
[9] In 2016, the Supreme Court dismissed what were the sixth and seventh recall applications addressed to the Court’s 2009 judgment refusing leave to appeal against the Court of Appeal judgment.8 In doing so, it directed the Registrar to “not accept any further applications by Mr Slavich which directly or indirectly challenge his convictions”.9
[10] Mr Slavich has also made three applications for the exercise of the royal prerogative of mercy under s 406 of the Crimes Act (a provision which has since
6 R v Slavich [2009] NZSC 87.
7 Attorney-General v Slavich [2013] NZHC 627. At [164] and [166] the Court recorded that at that time, Mr Slavich had instituted 35 private prosecutions and 17 civil proceedings.
8 Slavich v R [2016] NZSC 99.
9 At [3].
been repealed).10 It appears that the applications were made in 2019.
[11] It is the Ministry of Justice’s response to those applications, and in particular the advice of the Ministry’s Chief Legal Counsel, Mr Orr, that is in issue in the current proceeding.
[12] In addition, on 1 July 2020, Mr Slavich applied to Te Kāhui Tātari Ture | Criminal Case Review Commission (the Commission) to have his convictions reviewed.11 Mr Slavich describes two of the issues he has asked the Commission to investigate as follows:
(a)Did the trial judge in his deliberation read and consider a Crown witness, and counsel approved, transcript of evidence?
(b)Did the Court of Appeal deal with whether or not the Judge considered that transcript evidence?
Underlying issue relating to evidence of Ms Gibbs
[13] It appears that it is the evidence of a Mrs Calder (previously known as Ms Gibbs) at the trial which is at the heart of Mr Slavich’s concerns.12 The events relating to Ms Gibbs’ evidence have been previously addressed by the High Court, where the Court considered that Mr Slavich’s reliance on the issue was without merit.13 I now summarise the description of events provided in that decision.
10 See the statement of claim dated 7 June 2022 at [1.3] and the charging document dated 2 March 2022. The Court of Appeal and the Supreme Court have subsequently dismissed an appeal brought by Mr Slavich seeking an extension of time to bring an appeal relying on “fresh evidence”, namely two paragraphs of a report written by the Ministry of Justice for the purposes of an application Mr Slavich made for the exercise of the royal prerogative of mercy. Both Courts concluded that the neither the report itself nor the fact the report undertook the analysis it did was fresh evidence. See Slavich v Attorney-General [2020] NZCA 32; and Slavich v Attorney-General [2022] NZSC 105.
11 Mr Slavich has commenced a judicial review proceeding against the Commission following its decision not to proceed further with his case (HC Hamilton CIV 2011-419-463). The proceeding was recently adjourned by consent to allow the Commission to conduct a further assessment of Mr Slavich’s case; see Minute of Edwards J, 2 February 2023, CIV 2022-419-291.
12 In this judgment I refer to the witness as Ms Gibbs.
13 Above n 7, at [64]–[87] and [167].
[14] Special arrangements had been made at Mr Slavich’s trial regarding the evidence of Ms Gibbs. It was agreed that her evidence should be based on an agreed brief of evidence, following questioning by counsel in a telephone call.
[15] It appears from the relevant Minute that Heath J envisaged that after Ms Gibbs had been questioned on a previous brief, counsel would confer and provide an agreed brief of evidence that could be read to the Court. However, that process was not followed. What was provided was the brief of her evidence that had been used for the purposes of the questioning of Ms Gibbs by counsel during the telephone call, and the transcript made by the Judge’s Associate of counsel’s questions and her answers.
[16] Mr Slavich has argued that Heath J must have considered that the brief of evidence that was subsequently treated as part of the evidence in the trial was the agreed brief contemplated by his Minute. Mr Slavich argues that Heath J, in dealing with the evidence, had referred only to the brief and not to the transcript, with the consequence that matters to Mr Slavich’s advantage that had been elicited by his counsel in the telephone questioning were never considered by the Judge.
[17] An affidavit from Mr Slavich’s trial counsel confirms that counsel agreed that an earlier provided brief of evidence for Ms Gibbs could be introduced into the trial record on the basis that it represented admitted facts, together with a transcript of questions and answers taken by way of teleconference with her during the course of trial. Counsel reviewed the contents of the transcript and confirmed that it was an accurate record of the questions posed by counsel and the answers provided by Ms Gibbs.
[18] In a subsequent affidavit, the Crown Solicitor stated that both the brief and the transcript of the telephone conversation were admitted by consent and both effectively formed part of the brief of evidence of Ms Gibbs.
[19] The “Log of Proceedings Electronically Recorded” from the Court records of the trial notes at 12:39:13 on 21 September 2006:
Evidence read by consent of Ronald Stuart Watt, Kevin Francis Carroll, Richard Capewell Hannon, Caroline Anne Calder (nee Gibbs) and evidence
taken yesterday, Jarna Joy McLachlan, Caroline Jane Cody … [emphasis added]
[20] The High Court, in hearing the Attorney-General’s application for an order declaring Mr Slavich vexatious, considered that this passage must be referring both to Ms Gibbs’ brief and the transcript of her questions and answers. It noted there was no suggestion of any objection by the defence to this process being followed, and the fact that what was done did not accord precisely with the terms of Heath J’s minute was not significant.14
[21]The Court also considered that:
(a)both the brief and the transcript were included in the case on appeal and would have been available in support of any argument that Heath J had not considered the transcript, as well as the brief;15
(b)in their closing addresses at trial both counsel for the Crown and for Mr Slavich referred to the evidence that Ms Gibbs gave when she was questioned by telephone;16 and
(c)Heath J stated that he had read both the brief and the transcript in a discussion that took place when Mr Slavich appeared before Heath J in the context of his application for recall of Heath J’s verdicts judgment.17
[22] The Court was of the view that Heath J’s judgment itself makes Mr Slavich’s contention untenable. 18 Heath J had said:19
[14] Mr Douch had intended to call Ms Gibbs to give oral evidence at trial. However, shortly before the hearing began, she gave birth. Medical advice meant that she was unable to travel to Hamilton or to attend at some other location to give evidence by video-link.
[15] Counsel agreed that her evidence could be provided in written form with the addition of a transcript of answers given by her to questions put by
14 At [78].
15 At [80].
16 At [81].
17 At [84].
18 At [95].
19 Above n 4.
both Mr Douch and Mr McIvor, for Mr Slavich, in the course of a telephone conference held during the hearing. Neither counsel required her answers to be verified on oath.
[16] The telephone conference was conducted in my absence, in case counsel were unable to reach agreement about admission of the transcript in evidence. No credibility issues arise out of the answers given by Ms Gibbs.
[17] My Associate was present during the telephone conference and, with my authority, made a shorthand note of the discussions before preparing the typewritten transcript which has been incorporated, by consent, as part of Ms Gibbs’ evidence.
[23] The Court concluded that counsel agreed that both the brief and the transcript would go into the evidence by consent and that is what occurred. The Court said Heath J’s judgment shows he was well aware of what had happened, and he knew that both would need to be taken into account.20
[24] The High Court’s conclusions in this regard are consistent with the Court of Appeal’s earlier decision on Mr Slavich’s appeal against conviction.21 On appeal, Mr Slavich’s counsel argued that Ms Gibbs’ evidence (including the transcript) ought not to have been considered by Heath J as it was unsworn. This argument was dismissed by the Court of Appeal.22 The Court of Appeal said:
[16] We now turn to the second part of Ms Gibbs’s evidence, namely the transcript of the teleconference call. We need to describe how that transcript came into existence. Counsel suggested a procedure by which Ms Gibbs’s evidence (as contained in her brief) could be tested. On 20 September, the judge provisionally approved it. The agreed procedure was in brief this. The court set up a conference call with Ms Gibbs. Present in court were counsel, Mr Slavich, the registrar, and Heath J’s associate – but not Heath J himself. Counsel then had the opportunity to ask Ms Gibbs questions, as if she were present in court and they were conducting a supplementary examination-in- chief and cross-examination. The question and answer session was recorded and later transcribed by Heath J’s associate. The transcript was then given to counsel – but not, at that stage, to Heath J. Counsel then checked the transcript. It was only at that point that counsel agreed that Ms Gibbs’s brief of evidence and the transcript would both go into evidence. Following that agreement, counsel gave Heath J the transcript, and at that point, on 21 September, Ms Gibbs’s brief of evidence and the transcript became part of the evidence of the trial.
[17] It is important to emphasise certain features. First, everything occurred with Mr Slavich’s consent. Indeed, he was keen to have the transcript
20 Attorney-General v Slavich, above n 7, at [87].
21 R v Slavich [2009] NZCA 188 at [16]–[17].
22 At [27].
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.
[25] In 2009, the Supreme Court dismissed Mr Slavich’s applications for leave to appeal noting:23
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.
Mr Slavich’s claim
[26]Mr Slavich pleads two causes of action in his statement of claim.
[27] The first alleges error of fact. Mr Slavich says that the three reports written by Mr Orr are addressed to the Minister of Justice. He also says that Mr Orr’s only role was to assess the evidence and determine what he should advise the Minister. Mr Slavich says therefore that the District Court’s reasons for rejecting the charging document were errors of fact because the District Court Judge said:24
The three reports were provided to the Governor-General by the proposed defendant [Mr Orr] in his capacity as Chief Legal Counsel to the Ministry of Justice.
[28]And also that:25
Mr Orr was simply carrying out a task assigned to him by the Ministry of Justice.
[29]The second cause of action pleads error of law. Mr Slavich says that:
(a)Mr Orr lied in his reports about whether Heath J read and considered both the brief and transcript of Ms Gibbs’ evidence in the context of the trial, and whether the Court of Appeal had ruled on that issue;
23 Above n 6, at [3].
24 Above n 1, at [2].
25 At [19].
(b)he asked Mr Orr to correct his reports and he refused to do so;
(c)Mr Orr’s failure to correct his advice led to the Governor-General not referring his convictions back to the Court of Appeal for further consideration;
(d)Mr Orr had a criminal intent in failing to correct his advice, and through his position as Chief Legal Counsel, his criminal purpose was to ensure the convictions would not be referred back to the Court of Appeal;
(e)Mr Orr knew that by failing to correct his advice this would “cause a bad result for the s 406 applicant”, being Mr Slavich;
(f)Mr Orr had a criminal intent in failing to correct his advice as there is no other plausible reason than Mr Orr having a specific purpose of perverting the course of justice; and
(g)the District Court Judge erred by requiring him to provide direct evidence of what was in the mind of Mr Orr, as the Court’s yardstick to specific intent, where no direct evidence is available, is whether there was any plausible explanation for the failure to correct his advice to the Minister other than for the purpose to pervert the course of justice.
[30] Mr Slavich seeks an order overturning the District Court’s decision, together with an order that the Registrar of the District Court accept the charging document for filing.
Analysis
[31]The Attorney-General’s strike out application is based on two grounds:
(a)that there is no reasonable cause of action disclosed in the statement of claim; and
(b)the proceeding is an abuse of process.
[32] Pursuant to r 15.1(1)(a) of the High Court Rules 2016, the Court may strike out all or part of a pleading if it discloses no reasonably arguable cause of action. I accept the Attorney-General’s submission that the Court’s approach to such claims is well- established and were summarised by the Court of Appeal in Attorney-General v Prince and Gardner and endorsed by the Supreme Court in Couch v Attorney-General.26
[33] To be struck out, a cause of action must be so clearly untenable that it cannot possibly succeed. Generally, pleaded facts are assumed to be true, although this does not extend to pleaded allegations which are entirely speculative and without foundation.27 The same criteria apply to an application to strike out judicial review proceedings.28
Error of fact
[34] Mr Slavich contends that Mr Orr’s reports were not provided by Mr Orr to the Governor-General but by the Minister to the Governor-General. He also says that Mr Orr’s task was to advise the Minister.
[35] The Attorney-General submits that there are no errors of fact in the District Court judgment, and even if the statements did constitute errors of fact, they fall short of the kind of error capable of founding a successful claim in judicial review.
[36] The Attorney-General provided a letter from the Clerk of the Executive Council dated 26 September 2016 which confirms that Ministry of Justice officials are asked by the Minister’s office to assess any application for the exercise of the royal prerogative of mercy. He says that Mr Orr’s three reports form part of that assessment process and their preparation fell within Mr Orr’s duties as Chief Legal Counsel.
[37] The Attorney-General submits that it is not inaccurate to say that Mr Orr provided the reports to the Governor-General, as the Minister is responsible for advising the Governor-General but the Minister’s advice to the Governor-General
26 Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267; and Couch v Attorney- General [2008] NZSC 45, [2008] 3 NZLR 725 at [33].
27 Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566.
28 Southern Ocean Trawlers Ltd v Director-General of Agriculture and Fisheries [1993] 2 NZLR 53 (CA).
typically includes the advice of their legal advisers and did so in this case. The Attorney-General also submits that the alleged errors are not part of the reasons the Judge rejected the charging document. Rather, the Judge rejected it because there was no evidence sufficient to prove the elements of the charge to the required standard.
[38] I accept the Attorney-General’s submission that review of factual error is only available in limited circumstances. While error of fact is an independent ground of review, a court will only intervene where “the decision of fact is a condition precedent to the exercise of the power or where the error of fact results in a decision that is unreasonable” 29 or the erroneous fact was “pivotal to the decision”.30
[39] Mr Slavich conceded in oral argument that the allegations of errors of fact were “a bit of a side issue”. I agree. I do not accept that the two errors pleaded by Mr Slavich are actually errors in the District Court Judge’s reasoning. Even if they could be understood as factual errors, neither of them are of the significance necessary to ground a judicial review claim. They are not relevant (and certainly not “pivotal”) to the District Court Judge’s decision.
[40]I turn now to the alleged error of law.
Error of law
[41] As noted, Mr Slavich argues that Mr Orr had a criminal intent in not correcting his advice as there is no other plausible reason for Mr Orr not to do so.
[42] Mr Slavich submits that the District Court Judge was wrong to require direct evidence of what was in Mr Orr’s mind, such as “a confession to his intent or witness testimony to his intent”. Mr Slavich says this is a matter that should be left to the jury at trial. He says all he needs to do is to set out Mr Orr’s actions and what the outcome was.
29 Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at [92].
30 Northern Inshore Fisheries Company Ltd v Minister of Fisheries & Anor HC Wellington CP 235-01, 4 March 2002 at [47]–[48].
[43] He cites McGirr v R in support of his position.31 In McGirr, following the death of a woman in a spa pool at his home, the defendant was found guilty of attempting to pervert the course of justice by removing her clothing from his house and concealing it down a bank at his property. Mr McGirr appealed his conviction on the ground that a miscarriage of justice occurred because of a jury misdirection. Mr Slavich contends that this case demonstrates that his allegations against Mr Orr should be permitted to be put to a jury and so the District Court Judge was wrong in law to conclude that direct evidence of Mr Orr’s intent was required.
[44] The Attorney-General submits that Mr Slavich has provided no evidence to justify his assertions that Mr Orr attempted in his findings, conclusions and recommendations in the reports from the Ministry of Justice to pervert the course of justice. The Attorney-General accepts that there may be disagreement with the advice given by Mr Orr in the reports but says that the reports constitute his assessment of the position, and that does not amount to lies.
[45] The Attorney-General says the District Court judgment makes clear that the reason for rejection was the Court’s conclusion, after having considered the reports and other material provided by Mr Slavich, together with the statute and relevant case law, was that there was no evidence sufficient to prove the elements of the charge to the required standard.32
[46] In order to strike out the proceeding on the basis of no reasonable cause of action based on error of law, I need to conclude that it is not arguable that the District Court Judge erred in law in finding that Mr Slavich’s charging document should be rejected on the basis of insufficient evidence in relation to Mr Orr’s intent.
[47] The Attorney-General relied on the case of S (SC 58/2019) v Vector Ltd to establish that the District Court Judge’s approach was not in error of law.33 In that case, the Supreme Court addressed s 26 of the Criminal Procedure Act 2011, which, “is
31 McGirr v R [2021] NZCA 635.
32 Above n 1, at [17] and [19].
33 S (SC 58/2019) v Vector Ltd [2020] NZSC 97, [2021] 1 NZLR 1.
intended to operate as an initial or preliminary screening mechanism of proposed private prosecutions”.34
[48]Section 26 provides:
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.
[49] Therefore, pursuant to s 26(3)(a), a judge may direct that a charging document for the purpose of a private prosecution not be accepted for filing, if they consider that the evidence provided by the proposed private prosecutor is insufficient to justify a
34 Above n 33, at [47]–[66] and [89] per O’Regan and Ellen France JJ, [106] per Glazebrook J and
[129] per Winkelmann CJ and Williams J.
trial. In S (SC 58/2019) v Vector Ltd the Supreme Court determined that the following principles apply to the application of s 26(3)(a):
(a)a District Court judge retains a discretion to consider material going beyond that of the evidence of the proposed private prosecutor;35
(b)the discretion to consider additional material is to be exercised when it is in the interests of justice to do so, and should not be characterised as a residual discretion or one to be exercised only in exceptional cases;36
(c)public interest factors are not relevant to the assessment;37 and
(d)the threshold for determining evidential sufficiency is whether, on a prima facie basis, the evidence is sufficient to prove the elements of the charge to the required standard.38
[50] Mr Slavich informed me that the question of whether Heath J read and considered the transcript of Ms Gibb’s evidence is still under review by the Commission. He provided the Court with an extract from a letter to him from the Commission which states “During your original appeal proceedings, the Court of Appeal was not asked to assess whether Heath J recorded or rejected evidence from the Transcript”. As noted above, the specific question determined by the Court of Appeal was whether Ms Gibbs’ evidence was admissible, given that it was unsworn. The Attorney-General accepts that the Court of Appeal did not rule on a specific question of whether Heath J considered the transcript but says it is clear from
35 Above n 33, at [67]–[71] per O’Regan and Ellen France JJ, [105] per Glazebrook J and [113](b) and [130]–[133] per Winkelmann CJ and Williams J.
36 At [106] per Glazebrook J and [113](b) and [133] per Winkelmann CJ and Williams J.
37 At [75]–[76] per O’Regan and Ellen France JJ and [114] per Winkelmann CJ and Williams J.
38 At [85] and [91] per O’Regan and Ellen France JJ, [106] per Glazebrook J and [121] and [125] per Winkelmann CJ and Williams J.
the judgment that the question of Ms Gibbs’ evidence was carefully addressed by the Court.39
[51] As the Attorney-General submitted, it remains open to me to have regard to the previous Court decisions relating to Mr Slavich. It seems to me appropriate to leave the question of what the Commission is reviewing to one side when the Commission is yet to refer Mr Slavich’s convictions to the Court of Appeal (and may conclude that it is not in the interests of justice to do so). There is no doubt that Mr Slavich is entitled to pursue his application for review with the Commission. But I consider I am entitled to deal with the current application on the basis of the information available to me.
[52] On my reading of the earlier judgments, it seems to me that Heath J did consider the transcript of the questions put to Ms Gibbs and the answers she gave. It also seems to me that the Court of Appeal and Supreme Court looked carefully at the question of Ms Gibb’s evidence and how it was used at trial, as did this Court in the context of the application to declare Mr Slavich vexatious. On this basis, it seems likely that the Attorney-General’s submission that Mr Slavich’s allegations about what Mr Orr said in his reports are “hair-splitting” and inconsequential is correct. This might also be considered relevant to whether the evidence before the District Court as to what Mr Orr said in his reports was sufficient to prove the elements of the proposed charge to the required standard.
[53] Nevertheless, the basis of Mr Slavich’s claim that there is an error of law relates to the Judge’s view regarding Mr Orr’s state of mind, and that is what I turn to consider now. The District Court Judge said:40
In order to accept Mr Slavich’s private prosecution for filing, the Court must be satisfied on a prima facie basis, the proposed defendant intended to pervert the course of justice when he refused to correct his reports and advice to the Minister.
39 Mr Slavich informed me that his counsel in the Court of Appeal told him he was raising his concerns about reliance on the transcript at the hearing of the appeal but then did not do so, and that Mr Slavich has raised this in his application to the Commission. The Court of Appeal judgment records that the notice of appeal contained a number of grounds but counsel for Mr Slavich agreed that, in the end, the issues on appeal came down to two; see [4]. The Court of Appeal also observed that “[t]here is a dispute, advanced by Mr Haigh [counsel for Mr Slavich] but lightly, as to the exact form of part of Ms Gibbs’ evidence. We need to clear that up.”; see [6].
40 Above n 1, at [18]–[19].
Mr Slavich has not provided any evidence of that Mr Orr intended to pervert the course of justice in doing so… . There is no evidence that he did so with any intention to pervert the course of justice.
[54] On consideration of the threshold for evidential sufficiency, it was undoubtedly open the District Court Judge to come to this conclusion, and I consider that to do so was not an error of law. There being no evidence to suggest that Mr Orr intended to pervert the course of justice means that the Judge could not have concluded on a prima facie basis that there was sufficient evidence to prove that element of the charge to the required standard. That standard is ‘beyond reasonable doubt’. There was not sufficient evidence to justify a trial in the terms of s 26(3)(a). Ultimately, I consider that the Judge’s decision is an example of s 26(3)(a) operating as intended, and as the ‘preliminary screening mechanism’ described by the Supreme Court.
[55] I do not find the decision of McGirr to be relevant in the present case. Its focus was on whether the trial judge should have given a direction to the jury that they needed to be sure Mr McGirr interfered not only with the police investigation into the woman’s death, but also with the prosecution which might have arisen out of the investigation. It is not a decision about whether it is appropriate for a prosecution to be brought. McGirr does not bear upon the standard for evidential sufficiency in respect of privately brought prosecutions under s 26(3)(a). I consider that Mr Slavich’s reliance on McGirr has led him to pose an error of law that is irrelevant to what the District Court Judge was required to consider, namely whether there was sufficient evidence to prove the elements of the charge to the required standard.
[56] Accordingly, I conclude that there was no error of fact or law in the District Court decision and that as a result, the statement of claim discloses no reasonably arguable cause of action.
Abuse of process
[57] Pursuant to r 15.1(1)(d) of the High Court Rules 2016, the Court may strike out all or part of a pleading if it is an abuse of process of the Court. The Attorney- General contends that Mr Slavich’s proceeding is an abuse of process and ought to be struck out because it attempts to relitigate matters that have previously been determined by the Courts. However, he accepts that it is Mr Slavich’s right to apply to
the Commission, and notes that he has no role in the Commission’s independent consideration of that application.
[58] The Attorney-General points to Mr Slavich’s charging document, which puts in issue the question whether at his criminal trial Heath J considered not only Ms Gibbs’ brief of evidence but the transcript of the interview with her. He submits that the foundation of the proposed charge is that Mr Orr knowingly advised the Minister incorrectly that Heath J took into account both the brief and the transcript.
[59] Having reviewed the decisions of Heath J as trial judge, together with the decisions relating to the appeals to the Court of Appeal and Supreme Court, and the High Court decision in relation to the application to declare Mr Slavich vexatious, I am satisfied that Mr Slavich’s charging document and his opposition to the strike out application do seek to relitigate matters that have already been determined by the Courts. This amounts to an abuse of process. As such, I do not consider these to be circumstances where it is appropriate to provide an opportunity for Mr Slavich to amend his claim.
Conclusion
[60] I therefore conclude that Mr Slavich’s statement of claim should be struck out and the proceeding dismissed, on the basis that the statement of claim discloses no reasonably arguable cause of action and that it is also an abuse of process. In the circumstances, I do not need to address the Attorney-General’s alternative application for security for costs and a stay.
[61] Mr Slavich described to me in some detail other material he has provided to the Commission about Ms Gibbs’ evidence and how it was used at trial. He is concerned that there have been inventions of facts by the Courts and others and is seeking public scrutiny of what has occurred. It remains for the Commission to consider the arguments Mr Slavich has advanced and the materials he has provided.
[62] I also note that Mr Slavich is seeking a confidential settlement of his concerns with the Attorney-General, which the Attorney-General has no interest in.
Application to consolidate proceedings
[63] Mr Slavich seeks to consolidate this proceeding with two others, one being an application for judicial review of the Commission’s decision not to take Mr Slavich’s application further, and the other an application to recall a judgment and consider sanctions against Crown Law for misleading the courts.41
[64] Given my decision to strike out this proceeding, it is not necessary for me to deal with the question of consolidation. I note, however, that as the parties to the two other proceedings do not seem to have been given notice of the application and did not appear before me at the hearing, I would not have ordered consolidation of the proceedings at this time, in any event.
Result
[65]The statement of claim is struck out and the proceeding dismissed.
Costs
[66] The Attorney-General is to file a memorandum as to costs within ten working days of this judgment and Mr Slavich is to file any reply memorandum within a further ten working days.
McQueen J
Solicitors:
Crown Law Office, Wellington for First and Second Respondents
41 Above n 3.
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