IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV JOHN KENNETH SLAVICH Applicant. PAUL HEATH Second Respondent.

Transcription

1 IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY CIV BETWEEN AND AND JOHN KENNETH SLAVICH Applicant JUDICIAL CONDUCT COMMISSIONER First Respondent PAUL HEATH Second Respondent CIV AND BETWEEN AND AND JOHN KENNETH SLAVICH Plaintiff ATTORNEY-GENERAL First Defendant ROSS GREGORY DOUCH, LOUELLA DUNN, MARK NATHANIEL STURM AND PHILIP PATRICK CRAYTON Second Defendants CIV AND BETWEEN AND JOHN KENNETH SLAVICH Applicant CAMERON LESLIE MANDER Respondent CIV AND BETWEEN AND JOHN KENNETH SLAVICH Applicant CHERYL RAEWYN GWYN Respondent SLAVICH V JUDICIAL CONDUCT COMMISSIONER & ANOR HC HAM CIV July 2011

2 CIV AND BETWEEN AND JOHN KENNETH SLAVICH Applicant CAMERON LESLIE MANDER Respondent CIV AND BETWEEN AND JOHN KENNETH SLAVICH Applicant MATTHEW SIMON RUSSELL PALMER Respondent CIV AND BETWEEN AND JOHN KENNETH SLAVICH Applicant CAMERON LESLIE MANDER AND CHERYL RAEWYN GWYN Respondents CIV AND BETWEEN AND JOHN KENNETH SLAVICH Applicant LEGAL COMPLAINTS REVIEW OFFICER Respondent Hearing: 13 April 2011 Appearances: J Pike and S McKenzie for Respondent/Defendant (Applicants J Slavich in person (Respondent) Judgment: 14 July 2011 at 4:00 PM

3 (RESERVED) JUDGMENT OF ANDREWS J [Respondents /Defendants application to strike out proceedings] This judgment is delivered by me on 14 July 2011 at 4pm pursuant to r 11.5 of the High Court Rules.... Registrar / Deputy Registrar Solicitors: And to: Crown Law, PO Box 2858, Wellington 6140 (Respondents) J Slavich, PO Box 120, Hamilton 3240 (Applicant) -2- CIV BETWEEN AND JOHN KENNETH SLAVICH Applicant CAMERON LESLIE MANDER Respondent CIV BETWEEN AND JOHN KENNETH SLAVICH Applicant CHERYL RAEWYN GWYN Respondent CIV BETWEEN AND JOHN KENNETH SLAVICH Applicant CAMERON LESLIE MANDER Respondent CIV

4 BETWEEN AND JOHN KENNETH SLAVICH Applicant MATTHEW SIMON RUSSELL PALMER Respondent

5 -3- CIV BETWEEN AND JOHN KENNETH SLAVICH Applicant CAMERON LESLIE MANDER AND CHERYL RAEWYN GWYN Respondents IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY CIV BETWEEN AND JOHN KENNETH SLAVICH Applicant LEGAL COMPLAINTS REVIEW OFFICER Respondent

6 Introduction [1] The plaintiff, Mr Slavich, has filed eight proceedings. Seven of those proceedings are applications for judicial review ( the judicial review proceedings ). 1 In the eighth proceeding, Mr Slavich alleges that the defendants are liable to him on causes of action alleging misfeasance in public office, and negligence ( the misfeasance proceeding ). 2 [2] Applications have been filed on behalf of the respondents/defendants in all eight proceedings, for orders that the statements of claim be struck out pursuant to r 15.1(a) and (d) of the High Court Rules. In accordance with the direction of Priestley J, 3 all applications have been heard, and are to be determined, together. By consent, an oral application to strike out the statement of claim in Slavich v Mander & Gwyn 4 (which was filed after Priestley J s Minute) was heard at the same time. Factual background The trial [3] During the week of September 2006, Mr Slavich was tried before Heath J, sitting without a jury, on three counts of using a document with intent to defraud, two counts of forgery, two counts of uttering a forged document, and one count of unlawfully making a document ( the trial ). At the close of the Crown case Mr Slavich was discharged on one count of using a document. [4] On 12 October 2006, Heath J found Mr Slavich guilty, and convicted him, on two counts of using a document with intent to defraud, two counts of forgery, one count of uttering a forged document, and one count of unlawfully making a document. In the light of the conviction on one of the forgery counts, his Honour Slavich v Judicial Conduct Commissioner HC Hamilton CIV ; Slavich v Mander HC Hamilton CIV ; Slavich v Gwyn HC Hamilton CIV ; Slavich v Legal Complaints Review Officer HC Auckland CIV ; Slavich v Mander HC Hamilton CIV ; Slavich v Palmer HC Hamilton CIV ; and Slavich v Mander & Gwyn HC Hamilton CIV Slavich v Attorney-General HC Hamilton CIV Slavich v Judicial Conduct Commissioner HC Hamilton CIV , 6 April 2011 at [6]. Slavich v Mander & Gwyn HC Hamilton CIV

7 was not required to give a verdict on an alternative count of uttering a forged document. His Honour set out reasons for the verdicts reached in his Reasons for Verdict judgment delivered the same day ( Heath J s judgment ). 5 Appeals [5] Mr Slavich appealed against conviction to the Court of Appeal. The appeal was out of time and an application for leave to appeal was required. Leave was granted on 12 May Mr Slavich s appeal was dismissed on 15 May Mr Slavich then applied for leave to appeal to the Supreme Court against the judgment of the Court of Appeal, and for leave to appeal directly to the Supreme Court against Heath J s judgment. Both applications were dismissed on 10 August Complaint to New Zealand Law Society: Decision of Legal Complaints Review Officer [6] Mr Slavich complained to the Waikato branch of the New Zealand Law Society against the Crown Solicitor at Hamilton, Mr Douch, and three members of his firm, who were involved in various aspects of the trial and the Court of Appeal hearing. Those complaints were considered by a Wellington Standards Committee and dismissed. Mr Slavich then applied for the Standards Committee s decisions to be reviewed by the Legal Complaints Review Officer, pursuant to s 193 of the Lawyers and Conveyancers Act The Standards Committee s decisions were confirmed by the Legal Complaints Review Officer on 14 October 2010 ( the LCRO decisions ). Complaint to the Judicial Conduct Commissioner [7] Mr Slavich also made a complaint to the Judicial Conduct Commissioner that during the trial, Heath J had recorded a false matrix of the evidence of one of the witnesses, summarised inaccurate facts that he knew were in complete contrast to evidence given by the witness at trial, and had compared that evidence with the R v Slavich HC Hamilton CRI , 12 October R v Slavich [2008] NZCA 116. R v Slavich [2009] NZCA 188. Slavich v R [2009] NZSC 87.

8 evidence of another witness, to conceal his bias and pre-determination. That complaint was dismissed by the Judicial Conduct Commissioner on 26 May 2010 ( the JCC decision ). Prosecutions and stays [8] On 2 June 2010, Mr Slavich laid eight informations in the District Court at Hamilton, in which he charged Mr Douch with a variety of offences, including making a false oath, fabricating evidence, conspiring to defeat justice, concealing or destroying evidence, and using an altered document. On 22 June 2010, he laid 14 further informations, alleging similar offending by Mr Douch and members of his firm. All of those proceedings were stayed by Deputy Solicitor-General, Mr Mander, on 19 August 2010, pursuant to s 159 of the Summary Proceedings Act [9] Mr Slavich laid an information in the District Court at Wellington on 5 July 2010 against Ms Ball, who had appeared for the Crown to oppose Mr Slavich s application for leave to appeal to the Supreme Court. He alleged that she had conspired to obstruct, prevent, pervert or defeat the course of justice by not telling the Supreme Court that evidence tendered by the Crown at the trial was false evidence. That proceeding was stayed by Mr Mander on 23 September [10] On 11 October 2010, Mr Slavich laid an information charging Mr Mander with similar offending, in the District Court at Wellington. That proceeding was stayed by a different Deputy Solicitor-General, Ms Gwyn (signing on behalf of the Solicitor-General, Dr Collins), on 2 November A further stay of proceedings in relation to this information was issued by Ms Gwyn on 6 December [11] Mr Slavich then laid similar informations against Ms Gwyn and Dr Collins in the District Court at Wellington on 15 December Those proceedings were stayed by Mr Mander on 21 January Mr Slavich laid a further information against Mr Mander in the District Court at Wellington. That information is not dated, and it was stayed by a Deputy Solicitor-General, Mr Palmer, on 17 March 2011.

9 [12] Further informations alleging similar offending by Ms Gwyn, Dr Collins, and Mr Palmer, were laid in the District Court at Wellington on 29 March All were stayed by Mr Mander on 12 April Informations alleging similar offending by Mr Douch, and Mr Mander, laid in the District Court at Wellington on 29 March 2011, were stayed by Ms Gwyn on 13 April An information alleging similar offending by Mr Palmer, laid in the District Court at Wellington on 29 March 2011, was stayed by Mr Mander on 15 April [13] The decisions by the respective Deputy Solicitors-General to stay the informations laid by Mr Slavich are referred to in this judgment collectively as the Deputy Solicitor-General decisions. Misfeasance proceeding [14] The misfeasance proceeding was filed on 9 November It names the Attorney-General as first defendant, and Mr Douch, together with three members of his firm, as second defendants. Mr Slavich alleges that in making submissions to the District Court and High Court (on appeal) in relation to his application for name suppression, the defendants deliberately or recklessly made assertions as to facts, which were not supported by any evidence, and thereby acted in excess of their official powers so as to constitute misfeasance in public office. In the alternative, Mr Slavich alleges that the defendants owed him, as a member of the public, a duty of care, and breached that in the course of making submissions. Judicial review proceedings [15] Mr Slavich s seven proceedings for judicial review fall into three groups: (a) In Slavich v Mander, Slavich v Gwyn, Slavich v Mander (2), Slavich v Palmer, and Slavich v Mander and Gwyn, Mr Slavich seeks judicial review of the Deputy Solicitor-General decisions ( the Deputy Solicitor-General proceedings ).

10 (b) In Slavich v Judicial Conduct Commissioner, Mr Slavich seeks judicial review of the JCC decision ( the JCC proceeding ). (c) In Slavich v Legal Complaints Review Officer, Mr Slavich seeks judicial review of the LCRO decisions ( the LCRO proceeding ). The jurisdiction to strike out a statement of claim [16] The jurisdiction to strike out pleadings is set out in r 15.1 of the High Court Rules, which provides: 15.1 Dismissing or staying all or part of a proceeding (1) The court may strike out all or part of a pleading if it (a) discloses no reasonably arguable cause of action, defence, or case appropriate to the nature of the pleadings; or (b) is likely to cause prejudice or delay; or (c) is frivolous or vexatious; or (d) is otherwise an abuse of the process of the court.... [17] The relevant principles to be applied in considering an application to strike out a proceeding on the basis that it discloses no reasonably arguable cause of action are well settled. They were summarised by the Court of Appeal in Attorney-General v Prince & Gardner, 9 and by the Supreme Court in Couch v Attorney-General. 10 The following principles apply: 11 (a) Pleaded facts, whether or not admitted, are assumed to be true. This does not extend to pleaded allegations which are entirely speculative and without foundation. (b) The cause of action must be clearly untenable. It is inappropriate to strike out a claim summarily if the Court cannot be certain that it cannot succeed. (c) The jurisdiction is to be exercised sparingly and only in clear cases Attorney-General v Prince & Gardner [1998] 1 NZLR 262 (CA) at 267. Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725 at [33]. McGechan on Procedure (online looseleaf ed, Brookers) at [HR (1)].

11 (d) The jurisdiction is not excluded by the need to decide difficult questions of law, requiring extensive argument. (e) The Court should be particularly slow to strike out a claim in any developing area of the law, especially where the law is confused or developing. [18] With respect to the principle that pleaded facts are assumed to be true, the Court of Appeal in Attorney-General v McVeagh acknowledged: there may be a case where an essential factual allegation is so demonstrably contrary to indisputable fact that the matter ought not to be allowed to proceed further. [19] It has been held that a proceeding is frivolous or vexatious, and therefore an abuse of process, if it is an attempt to re-litigate matters that have already been determined, or is a duplication of other proceedings. Attempts to re-litigate matters already determined are referred to as collateral attacks on judgments of another court of competent jurisdiction. In Hunter v Chief Constable of the West Midlands Police, Lord Diplock said: 13 The abuse of process which the instant case exemplifies is the initiation of proceedings in a court of justice for the purpose of mounting a collateral attack upon a final decision against the intending plaintiff which has been made by another court of competent jurisdiction in previous proceedings in which the intending plaintiff had a full opportunity of contesting the decision in the court by which it was made. The misfeasance proceeding Introduction [20] Mr Slavich was first charged on 5 August The charges resulted from a large-scale Police investigation named Operation Allsorts. At the time of Mr Slavich s arrest, 21 people had been charged with similar offending, including a Mr Orchard. Mr Slavich appeared in the District Court at Hamilton on 6 August Attorney-General v McVeagh [1995] 1 NZLR 558 (CA) at 566. Hunter v Chief Constable of the West Midlands Police [1982] AC 529 (HL) at 541.

12 and, by consent, was given interim suppression of name. A formal application for name suppression was made by his counsel, Mr McIvor, on 27 August [21] The application for suppression of name was heard by Judge Spear in the Hamilton District Court on 13 September 2004 and refused in a reserved judgment given on 20 September Mr Slavich was represented by Mr McIvor. Ms Foster (employed by Mr Douch s firm) appeared for the Police. Both counsel filed written submissions and made oral submissions. Mr Slavich appealed to the High Court and his appeal was heard by Ronald Young J on 15 November Mr McIvor and Ms Foster again appeared for Mr Slavich and the Police, respectively. Mr Slavich s appeal was dismissed. 15 (a) Mr Slavich s cause of action alleging misfeasance in public office (i) Pleadings [22] In his first cause of action, Mr Slavich alleges that the submissions made by Ms Foster at the name suppression hearings constitute misfeasance in public office. In her submissions, Ms Foster described the central allegations faced by Mr Slavich, the specific types of offending it was alleged he had been involved in, the magnitude of the offending (referring to the specifics of the transactions Mr Slavich was currently charged with, as set out in the summary of facts), the common denominators of the transactions, Mr Slavich s alleged place in the structure of the group of offenders, the Police case against Mr Slavich and the evidence in support of the charges (in the form of documents, witness statements, and intercepted communications). She submitted that the charges against Mr Slavich were serious and reflected alleged deliberate and determined offending over a sustained period. [23] Mr Slavich alleges that no facts or evidence existed in support of Ms Foster s submissions, that prosecution guidelines were not followed, and that the courts would accept Ms Foster s submissions and the summary of facts as true. Mr Slavich alleges that without what he describes as the false statement of facts and false claims New Zealand Police v Slavich DC Hamilton CRI , 20 September Slavich v New Zealand Police HC Hamilton CRI , 15 November 2004.

13 of existence of facts and evidence, he would have gained permanent name suppression until the outcome of his trial. (ii) Submissions [24] In support of the application to strike out, Mr Pike submitted, first, that the matters pleaded by Mr Slavich do not establish the key elements of the tort of misfeasance in public office. He submitted that Mr Slavich could not establish that when Ms Foster appeared at the name suppression hearings, she was a holder of any public office. He accepted that the Crown Solicitor at Hamilton holds public office, but submitted that at the time of the name suppression application, Ms Foster was not exercising a power of public office, because no indictment had been presented. Instead, Ms Foster was appearing as counsel for the Police, not acting in the name of the Crown. [25] Mr Pike accepted that the prosecution guidelines 16 require counsel appearing for the prosecution to behave with propriety and in accordance with principle, but submitted that that does not transform them into holders of public office; it simply puts their responsibility at a certain level. Further, Mr Pike submitted that the matters pleaded by Mr Slavich do not establish that when Ms Foster was appearing for the Police at the name suppression hearings, she was exercising any power attached to a public office. He submitted that there is no public office power, whether statutory or at common law, to make submissions. [26] Secondly, Mr Pike submitted that the principle of witness immunity applies to protect Ms Foster from litigation. Thirdly, he submitted that the judgments of the District Court and High Court do not on their face disclose that the Courts decisions were reached on the basis of the submissions Mr Slavich alleges constitute misfeasance. Accordingly, he submitted, Mr Slavich cannot establish that but for the alleged dishonest submissions, he would have been granted name suppression. 16 A reference to the Crown Law Office Prosecution Guidelines (9 March 1992) (applicable at the time of the name suppression hearings) and the Crown Law Office Prosecution Guidelines (1 January 2010).

14 [27] Mr Slavich submitted that in making submissions at the name suppression heaings, Ms Foster held public office, and was exercising a power or authority with which she was clothed by virtue of the office she held. 17 He submitted that in her submissions, Ms Foster was giving both Courts an absolute assurance (which he described as an undertaking) that evidence existed in each of the three categories she referred to (documents, witness statements, and intercepted communications). He submitted that there were no documents or intercepted communications in support of the charges against him. He submitted, further, that the only evidence against him was that of Mr Orchard, who described himself as a professional fraudster. [28] Mr Slavich submitted that, as a result of Ms Foster s submissions, the judgments in the District Court and High Court were founded on a fabrication, or fabricated evidence in that, he submitted, Ms Foster s submissions went beyond what was stated in the summary of facts. Mr Slavich further submitted that the principle of witness immunity could not extend to submissions that contain fabrications. (iii) Discussion [29] Mr Slavich s allegations can only be directed at the fact that at the time of the name suppression hearings, the charges against him included a charge under s 98A of the Crimes Act 1961 of participating in an organised criminal group, and two charges of conspiring with another person to defraud. Those charges were not subsequently proceeded with at trial. The remaining charges (as represented in the indictment) were proceeded with and, with the exception of one charge of using a document, Mr Slavich was convicted. It cannot be said that there was any fabrication by way of an assurance as to evidence, in respect of those charges. [30] With that said, I turn first to consider whether Ms Foster held public office. The Court of Appeal set out a summary of what is required to succeed on a claim of misfeasance in its judgment in New Zealand Defence Force v Berryman. 18 The Court noted, first, that the defendant must be a public officer; that is someone A reference to Calveley v Chief Constable of the Merseyside Police [1989] AC 1228 (HL) at New Zealand Defence Force v Berryman [2008] NZCA 392 at [62] [64].

15 appointed to discharge a public duty in return for compensation. 19 The Court then referred to conflicting approaches as to the breadth of the concept of public officer. In Cannon v Tahche, 20 the Court of Appeal of Victoria concluded that counsel appearing for the Crown in a prosecution were not public officers. In Noori v Leerdam, 21 the Supreme Court of New South Wales concluded that it was reasonably arguable that a solicitor appearing for the Minister of Immigration before the Administrative Appeals Tribunal was a public officer. In Berryman, the Court of Appeal expressed the view that a claim of misfeasance in public office against counsel making submissions for the New Zealand Army at a Coroner s inquest would (were it not for immunity from suit principles) be sufficiently tenable to survive a summary judgment application. 22 [31] In the context of this strike out application, it is appropriate to take a cautious approach. I cannot exclude the possibility that a court may hold that, when making submissions, Ms Foster held public office. In Berryman the Court of Appeal did not address whether, in making submissions, counsel for the Army was exercising any power conferred by virtue of a public office. In the light of its conclusion that a misfeasance claim would (subject to immunity) be sufficiently tenable to survive a summary judgment application, the Court of Appeal appears to have concluded that in making submissions counsel could have been exercising a power. Similarly, for the purposes of this strike out application, I could not exclude the possibility that a court could hold that Ms Foster was exercising a power confirmed by public office. [32] However, Mr Slavich s cause of action in misfeasance of public office must be struck out, for the reasons set out below. [33] I accept Mr Pike s submission that the summary of facts to which Ms Foster referred in her submissions was not disputed by counsel for Mr Slavich in his submissions in the District Court. His counsel focused on the impact of publicity on Mr Slavich s family and other persons, and the presumption of innocence. Further, Mr Slavich s counsel conceded a prima facie case on all charges (including the At [63]. Cannon v Tahche [2002] VSCA 84, (2002) 5 VR 317 at Noori v Leerdam [2008] NSWSC 515. Berryman at [76].

16 charges of conspiracy in participation in an organised criminal group) at depositions. That concession is binding on Mr Slavich as to the existence of evidence on all charges against him at the time. [34] I do not accept Mr Slavich s submission that the fact that charges were not pursued at trial necessarily implies, first, that no evidence existed to support those charges, and, secondly, that Ms Foster knew that no such evidence existed. To the contrary, I accept that the allegation that Ms Foster had such knowledge must be seen as being entirely speculative and without foundation. It is within the category of factual allegations referred to by the Court of Appeal in Attorney-General v McVeagh, 23 in that it is demonstrably contrary to the indisputable facts that Ms Foster was making submissions based on the summary of facts, and Mr Slavich conceded a prima facie case. Accordingly, I accept Mr Pike s submission that Mr Slavich cannot succeed in establishing that there was any actual misfeasance: that Ms Foster knew (as Mr Slavich alleges) that there was no evidence to support the charges of conspiracy and participation in a criminal group, or that she acted with malice. [35] Secondly, I accept Mr Pike s submission that the doctrine of witness immunity applies to Ms Foster s submissions. As the Court of Appeal said in Berryman: 24 [67] Those who give evidence or make submissions to a court enjoy immunity from suit. The purpose of this immunity is not to encourage dishonest or defamatory submissions or perjury; rather it is to protect parties to litigation, along with their counsel and witnesses, from vexatious litigation. There is also an associated purpose of limiting the scope for relitigation. All of this, along with the metes and bounds of the immunity, is discussed at length in Darker v Chief Constable of the West Midlands Police [2001] 1 AC 435 (HL) and Meadow v General Medical Council [2007] 1 All ER 1 (CA). [68] We recognise that the immunity is limited. It is confined to what is said in court and necessary preliminaries to that (see Darker).... [36] Ms Foster was making submissions in court. I accept Mr Pike s submission that there is no pleading that Ms Foster fabricated evidence such that the immunity Attorney-General v McVeagh [1995] 1 NZLR 558 (CA). Berryman at [67] and [68].

17 might not be available. Accordingly, I accept that Ms Foster is covered by witness immunity. [37] Thirdly, I accept that Mr Slavich cannot establish that but for the alleged fabrication in Ms Foster s submissions, he would have been granted name suppression. It is evident from the judgments of Judge Spear and Ronald Young J that both decisions refusing suppression of name were made as a result of balancing the principles of open justice (the presumption that the public is entitled to know what is going on in their courts) against the submissions made as to the possible harmful impact of declining to continue suppression of name. 25 In both judgments, it was noted that Mr Slavich was entitled to the presumption of innocence, and neither Judge undertook any assessment of the strength of the case against Mr Slavich. It is clear that neither judgment was founded on the submissions challenged by Mr Slavich. (b) Causes of action alleging negligence (i) Pleadings [38] In his second and third causes of action, in negligence, Mr Slavich alleges that the Attorney-General and the second defendants had a duty of care to the public of New Zealand to act within the law and within guidelines set down for prosecuting criminal cases. 26 He also alleged that he is a member of the New Zealand public directly affected by the second defendant s alleged negligent conduct. 27 He alleges that the first and second defendants breached that duty of care, referring to the matters pleaded under the misfeasance cause of action. He alleges that the Attorney- General is vicariously liable for the actions of Ms Foster See Slavich v New Zealand Police HC Hamilton CRI , 15 November 2004 at [18]. See Slavich v Attorney-General HC Hamilton CIV , Statement of Claim at [5.1] and [6.3]. At [5.2] and [6.4].

18 (ii) Submissions [39] Mr Pike submitted that Mr Slavich cannot succeed on either of the two pleaded causes of action in negligence. He submitted that the Attorney-General is not, and cannot be, vicariously liable for the actions of a solicitor instructed to represent the Police and is not, therefore, acting in the name of the Crown. He also submitted that s 6(5) of the Crown Proceedings Act 1950 (which provides that no proceedings shall lie against the Crown in respect of anything done by any person while discharging that person s responsibilities in connection with the execution of a judicial process) bars liability. Mr Pike also submitted that the asserted duty of care is unknown to law, and that there are no grounds for imposing such a duty. Further, he submitted that the doctrine of witness immunity applies. [40] Mr Slavich submitted that the Attorney-General must be liable for the actions of a solicitor carrying out the functions of the Crown Solicitor, under the principles of vicarious liability, or under agency principles. 28 He also submitted that s 6(5) of the Crown Proceedings Act cannot apply to bar proceedings in respect of criminal actions committed in court, and repeated his earlier submissions that witness immunity cannot apply. Regarding the asserted duty of care, Mr Slavich submitted that a public officer must owe a duty of care to comply with the prosecution guidelines, and not to abuse process by a criminal act. (iii) Discussion [41] It is appropriate to address, first, the asserted duty of care. I accept Mr Pike s submission that a duty of care to the public at large is untenable. Whether analysed in terms of forseeability, remoteness, or scope of duty, the asserted duty is unsustainable, and it is not just and reasonable that it should be imposed. 29 As pleaded, the two causes of action must be struck out as they disclose no reasonably arguable cause of action Citing Nathan v Dollars & Sense Ltd [2008] NZSC 20, [2008] 2 NZLR 557. See the principles set out in Rolls Royce Ltd v Carter Holt Harvey Ltd [2005] 1 NZLR 324 (CA) at [58] [55], and Couch v Attorney-General [2008] NZSC 45, [2008] 3 NZLR 725.

19 [42] I turn, however, to consider whether the negligence causes of action could survive a strike out application, if amended to assert a duty of care owed to persons charged with criminal offences, or to Mr Slavich, in particular. I accept Mr Pike s submission that, even if amended, the asserted duty of care is untenable. Such a duty would be contrary to the interests of justice and inconsistent with the duty of a solicitor acting as prosecutor to be independent, acting as the public s representative in prosecuting alleged offending, and to maintain a position of personal neutrality, detachment, and objectivity. The solicitor has obligations to the court and may be subject to disciplinary proceedings brought by the relevant professional body, but is not subject to suit by an alleged offender. [43] In Cannon v Tahche the Court of Appeal of Victoria said of a prosecutor s duty: 30 The duty to conduct the prosecution fairly was essentially an ethical duty and, if it was owed to anyone, it was as we have said, owed to the court. The Court of Appeal of Victoria cited the judgment of the High Court of Australia in Whitehorn v R, 31 where Deane J said that the standards of fairness and detachment which should be observed by prosecutors are not directly enforceable at the suit of the accused, or anyone else, by prerogative writ, judicial order, or action for damages. [44] Further, and even if the asserted duty of care were sustainable, the pleadings must be struck out on the grounds that witness immunity applies, for the same reasons as set out in respect of the misfeasance cause of action. [45] In the light of my finding as to the asserted duty of care, it is not necessary to consider the submissions of Mr Pike and Mr Slavich as to whether vicarious liability or agency applies. Nor is it necessary to consider Mr Pike s submission that the misfeasance proceeding is a collateral attack on the judgment of Ronald Young J Cannon v Tahche [2002] VSCA 84, [2002] 5 VR 317 at 347. Whitehorn v R (1983) 152 CLR 657 (HCA) at 665.

20 (c) Result: misfeasance proceeding [46] Accordingly, I conclude that the misfeasance proceeding must be struck out on the grounds that it discloses no reasonable cause of action. The judicial review proceedings Mr Slavich s trial and appeals [47] At the heart of all of these proceedings, and the informations, stays and decisions that preceded them, is a particular aspect of the evidence called by the Crown at the trial. [48] In general terms, the Crown alleged that Mr Slavich participated dishonestly with Mr Orchard in two transactions, known as the Booth and Hannon transactions, respectively. The Hannon transaction involved a person impersonating Mr Hannon in order to obtain a loan secured over Mr Hannon s property, thereby defrauding Mr Hannon of part of the equity in his property. The Crown alleged that Mr Slavich was a party to the offending in that he had dealings with a mortgage broker who arranged the loan. Mr Slavich denied being a party to the offending, saying that he, too, had been a victim of Mr Orchard, and had honestly believed that the real Mr Hannon was involved. Heath J found that Mr Slavich knew that the real Mr Hannon was not involved. [49] The Crown intended to call, as a witness, a principal of the mortgage broker, Ms Gibbs. At the time of the Hannon transaction, this witness was known by her maiden name, Carolyn Gibbs. By the time of the trial, she had married and taken her husband s surname of Calder. However, Heath J referred to her as Ms Gibbs, as did the Court of Appeal. Notwithstanding that she was referred to in the Supreme Court s judgment as Mrs Calder, I shall refer to her as Ms Gibbs. [50] Ms Gibbs made a depositions statement, which was provided to Mr Slavich. Prior to the trial, the depositions statement was expanded into a brief of evidence ( the brief of evidence ), which was signed by Ms Gibbs and provided to Mr

21 Slavich. At the time of the trial, Ms Gibbs, on medical advice, could not travel from her home in Auckland to give evidence at the trial in Hamilton, nor could she attend at some other location to give evidence by video link. Counsel for the Crown, Mr Douch, requested that Ms Gibbs evidence be read, but that was declined. [51] In his Minute (No. 7) of 20 September 2006, Heath J recorded that he had approved a procedure, agreed to by Mr Douch and counsel for Mr Slavich (Mr McIvor) to obtain Ms Gibbs evidence. 32 A telephone conference was arranged with Ms Gibbs on 20 September Present in the High Court in Hamilton were Mr Douch, Mr McIvor, Mr Slavich, the Registrar, and Heath J s associate, but not Heath J. Mr Douch and Mr McIvor had the opportunity to ask Ms Gibbs questions, as if she were present in court. She was not, however, under oath. The questions and answers were recorded by Heath J s associate, who prepared a transcript ( the transcript ), which was given to counsel, but not to Heath J. After counsel had checked, amended, and signed the transcript, they agreed that Ms Gibbs brief of evidence and the transcript would both go into evidence. [52] It is apparent from the transcript that counsel discovered during the question and answer session that Ms Gibbs was now calling herself Mrs Calder. After the telephone conference, Mr Douch made one change to Ms Gibbs brief of evidence, which was to change the first paragraph so that, instead of reading my full name is Carolyn Ann Gibbs, it read [my] full name is Carolyn Ann Calder. My maiden name was Carolyn Ann Gibbs. Mr Douch sent the revised brief of evidence to Ms Gibbs, who signed and returned it on 21 September 2006 ( the revised brief of evidence ). In an affidavit sworn on 1 April 2008, Mr Douch said that he believed that the original of the revised brief of evidence was filed in court, as he held only a photocopy of it. However, the court file holds only an unsigned copy of the original brief of evidence. [53] In his judgment, Heath J recorded the following, regarding Ms Gibbs evidence: R v Slavich HC Hamilton CRI , 20 September R v Slavich HC Hamilton CRI , 12 October 2006 at [15] [17].

22 [15] Counsel agreed that [Ms Gibbs ] evidence could be provided in written form with the addition of a transcript of answers given by her to questions put by 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. His Honour referred to Ms Gibbs evidence at [50] to [62] of the decision, in the course of setting out the reasons for his verdicts on the charges arising out of the Hannon transaction. [54] On 3 September 2007, Mr Slavich applied to the Court of Appeal for leave to appeal against conviction. In its judgment granting leave, the Court noted that the principal ground of appeal was that the Judge had erred in finding that Mr Slavich had the requisite knowledge to be found guilty. 34 The Court then recorded that it had felt obliged to remark, at the hearing, on a potential appeal point, relating to whether Ms Gibbs evidence was required to be sworn or affirmed. 35 In doing so, the Court recorded the following, in respect of submissions made on behalf of Mr Slavich by his counsel, Mr Haigh QC: 36 [49] Initially, Mr Haigh was of the impression that the Judge might not have seen this transcript and taken it into account. At an earlier point of time he asked this panel to direct a report from the trial Judge, prior to the hearing on 17 April, as to whether he had seen the transcript and taken it into account. Mr Haigh now accepts that there are passages in the reasons for verdict judgment which suggest that the Judge had done so. [55] At the substantive hearing of Mr Slavich s appeal, Mr Haigh argued two grounds of appeal. The first was as to the admissibility of Ms Gibbs evidence, the second was as to whether any of the verdicts were unreasonable having regard to the evidence. The Court of Appeal found in favour of the Crown on both issues R v Slavich [2008] NZCA 116. At [46] [62]. At [49]. R v Slavich [2009] NZCA 188.

23 [56] In discussing the issue of Ms Gibbs evidence, the Court set out the factual background, noting that counsel at trial had agreed that her evidence was in two parts: the brief of evidence and the transcript. 38 At [17] the Court said: [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. [57] The Court then considered Mr Haigh s submission that, as the trial had occurred before the Evidence Act 2006 came into effect, it was impossible for an accused to consent to the admission of unsworn evidence. The Court rejected this submission, and held that it was not impossible for Mr Slavich to consent to the admission of unsworn evidence, and that it did not consider any prejudice had arisen from the Judge s acceptance of the procedure agreed to by counsel. 39 [58] Mr Slavich then applied for leave to appeal to the Supreme Court. He set out the grounds of appeal as follows: What are the specific grounds of your proposed appeal? Point of Law: a. No Deposition was provided and presented by the Crown for the principal Crown witness as directed by the Court and in accordance with section 178 of the Summary Proceedings Act b. Wrong evidence was tendered to the Court by the Crown in breach of the Judicature Act 1908, [High Court Rules] 502(2) and s.369 of the Crimes Act In that it was not evidence or an agreed statement of fact of another key Crown witness, a witness the [d]efence saw as their principal witness after her examination. c. The correct evidence of that Crown witness, signed by my [c]ounsel and myself, was not tendered to the Court by the Crown in breach of the Judicature Act 1908, [High Court Rules] 502(2) At [10]. At [18] [27]. Notice of application for leave to bring criminal appeal, 12 June 2009 at [1a-f].

24 d. The separate agreed facts document of that same key witness consented to by the Defence was not tendered to the Court by the Crown in breach of the Judicature Act 1908, [High Court Rules] 502(2) and s.369 of the Crimes Act e. The Crown did not provide a vital Exhibit, the document referred to extensively and exclusively by the expert witnesses and the judge on count 10. f. Because of the above, my rights under [s]25(a), (d), and (f) of the New Zealand Bill of Rights Act 1990 were breached. It is evident from Mr Slavich s expansion on those grounds of appeal which follow in the document that grounds b, c, and d relate to Ms Gibbs evidence. [59] After hearing from Mr Slavich, the Supreme Court dismissed his application for leave to appeal. 41 The Court said: 42 [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 [Ms Gibbs]. The JCC proceeding [60] The judgment of the Supreme Court was delivered on 10 August In his statement of claim in the JCC proceeding, Mr Slavich alleges that the basis of his complaint to the Judicial Conduct Commissioner was the Supreme Court s finding that it is not reasonably arguable that the Judge has fallen into error concerning the evidence of [Ms Gibbs]. He alleges that, as a consequence of that finding, Heath J: by his unacceptable conduct: Slavich v R [2009] NZSC 87. At [2] and [3]. Slavich v Judicial Conduct Commissioner HC Hamilton CIV , Statement of Claim 21 July 2010 at [2.3].

25 (a) (b) (c) Recorded a false factual matrix of the [Ms Gibbs] evidence in his decision of 12 October 2006; Summarised those inaccurate facts that he knew were in complete contrast to the [Gibbs] evidence at trial; Compared that falsified evidence with the key witness at trial, Mr. Orchard, to conceal his bias and pre-determination. The LCRO proceeding [61] Mr Slavich s complaints to the New Zealand Law Society against Mr Douch and other members of his firm also relate to the trial. The complaints may be summarised as follows: 44 (a) misleading the District and High Courts at the name suppression hearings by advising that there was admissible and reliable evidence to support charges against Mr Slavich; (b) misleading the High Court at the hearing of an application for discharge under s 347 of the Crimes Act 1961 by submitting that there was admissible and reliable evidence to support charges against Mr Slavich; (c) misleading the High Court as to whether Mr Orchard would be called to give evidence; (d) falsely removing and withholding evidence by placing Ms Gibbs brief of evidence on the court file and removing the transcript; and (e) misleading the Court of Appeal by representing that Ms Gibbs brief of evidence was the accepted brief of evidence, to the extent that the Court of Appeal did not read the transcript. 44 See the following LCRO decisions: Slavich v Foster LCRO 63/2010, 14 October 2010; Slavich v Crayton LCRO 74/2010, 14 October 2010; Slavich v Mann LCRO 80/2010, 14 October 2010; Slavich v Douch LCRO 81/2010, 14 October 2010, in particular LCRO 81/2010 at [19] [47].

26 [62] In the LCRO decision it was noted that informations laid by Mr Slavich in the District Court, arising out of the same circumstances, had been stayed. In his statement of claim against the LCRO officer, Mr Slavich alleges that each of the above LCRO decisions was procedurally improper, on the grounds that he was given no opportunity to respond to communications from the solicitors concerned before the decisions were issued, and that the LCRO decisions should have been deferred, because the stays of prosecution were subject to court proceedings. 45 Mr Slavich also alleges that the LCRO decisions were irrational and outrageous of accepted moral standards. 46 The Deputy Solicitor-General proceedings [63] Each of the Deputy Solicitor-General proceedings arises out of decisions to stay informations laid by Mr Slavich against Mr Douch, other members of his firm, Crown counsel, and subsequently against Deputy Solicitors-General who had stayed earlier informations. I summarise, briefly, the essence of Mr Slavich s allegations in each proceeding. (a) Slavich v Mander: 47 The first informations against Mr Douch and others alleged that they committed offences in the course of representing the Police and the Crown at the trial, and on appeal. In particular, it is alleged that they ensured that the transcript did not make its way onto the court record. In his claims for judicial review, Mr Slavich alleges that when Mr Mander stayed those informations, he knew that Mr Douch and others had misled the court, and that the Informations had been laid in good faith, but stayed them notwithstanding that. Mr Slavich claims procedural impropriety (bias), breach of natural justice, illegality, and irrationality Slavich v Legal Complaints Review Officer HC Auckland CIV , Statement of Claim, 12 January 2011 at [4.4] [4.7], [7.4] [7.7], and [8.4] [8.6]. At [4.8]-[4.19] (first cause of action, relied on for subsequent causes of action). Slavich v Mander HC Hamilton CIV , Statement of Claim, 15 November 2010.

27 (b) Slavich v Gwyn: 48 This proceeding repeats the allegations from the previous proceeding, and alleges that Mr Mander conspired with Mr Douch to defeat the course of justice, by giving false reasons for exercising his power to stay proceedings. That information was stayed by Ms Gwyn and Dr Collins, leading to the application for judicial review claiming procedural impropriety (bias), breach of natural justice, illegality, and irrationality. (c) Slavich v Mander (No 2): 49 Mr Slavich laid informations against Ms Gwyn and Dr Collins, alleging that in staying the information against Mr Mander, they conspired with Mr Mander to defeat the course of justice. Those informations were stayed by Mr Mander, and Mr Slavich then sought judicial review, claiming procedural impropriety (bias), breach of natural justice, illegality, and irrationality. (d) Slavich v Palmer: 50 Mr Slavich laid a further information against Mr Mander, alleging that in staying the informations against Ms Gwyn and Dr Collins, he had conspired to defeat the course of justice. That information was stayed by Mr Palmer, and Mr Slavich sought judicial review, claiming procedural impropriety (bias), breach of natural justice, illegality, and irrationality. (e) Slavich v Mander & Gwyn: 51 Mr Slavich laid informations against Ms Gwyn, Dr Collins, Mr Mander, and Mr Douch. These were stayed by Mr Mander and Ms Gwyn. Mr Slavich seeks judicial reviews of the stays, claiming procedural impropriety (bias), breach of natural justice, illegality, and irrationality Slavich v Gwyn HC Hamilton CIV , Statement of Claim, 14 December Slavich v Mander (No. 2) HC Hamilton CIV , Statement of Claim, 22 February Slavich v Palmer HC Hamilton CIV , Statement of Claim, 21 March Slavich v Mander & Gwyn HC Hamilton CIV , Statement of Claim, 26 April 2011.

28 Submissions [64] Mr Pike submitted that each of the judicial review proceedings is a continuation of a collateral attack on the findings of the courts as to Mr Slavich s criminal liability. He submitted that the issues raised in the proceedings had been brought before the courts, and had been dismissed. The judicial review proceedings are, he submitted, an attempt to re-litigate matters that have already been heard and determined. As such, they are an abuse of process and should be struck out. [65] Mr Pike noted that the Court of Appeal had, both in its decision to grant leave to appeal, and in its substantive decision, set out the factual circumstances surrounding Ms Gibbs evidence. He referred to the Court of Appeal having recorded, at [49] of the leave decision, that Mr Haigh had initially been of the impression that Heath J might not have seen and taken into account the transcript, but had then accepted that there were passages in Heath J s decision that suggested he had done so. He also pointed to Mr Haigh s submission to the Court of Appeal at the substantive appeal hearing that Heath J had (wrongly) taken Ms Gibbs unsworn evidence into account. He submitted that Mr Slavich was bound by the submissions of his counsel, and could not now assert, to the contrary, that the transcript had not been in evidence before Heath J. [66] Mr Pike also referred to the judgment of the Supreme Court, when Mr Slavich sought leave to appeal on the grounds, among others, that the transcript was not in evidence. He submitted that the Supreme Court s decision that it was not reasonably arguable that Heath J was in error as to Ms Gibbs evidence, together with the judgment of the Court of Appeal, are determinative in dismissing Mr Slavich s allegations that either Heath J did not have the transcript, or did have a transcript which had been doctored in some way by Mr Douch or members of his firm. [67] Mr Slavich submitted that there are reasonable causes of action in all of the proceedings. He submitted that it is clear on the evidence that Heath J had Ms Gibbs brief of evidence (which he described as the false brief ) before him at the trial, but did not have the annotated, signed transcript. He submitted that there is