Applicant v Respondent

3 As a result of concerns that Kyrou J had in relation to Mr Slaveski's mental state and his behaviour in Court, his wife, Mrs Slaveska, was appointed his litigation guardian on 14 December 2009.[2]

4 This proceeding concerns events which took place in the course of that trial on 2 June 2010.

5 The hearing before Kyrou J that day commenced with Mrs Slaveska giving an account of what she and her husband said was an attempt by police to murder them on their way to the Court that morning. After an indication from the judge that his capacity to address complaints against police away from the Court were limited, Mr Slaveski began behaving in a way which prompted the judge to firstly threaten to order his removal from the Court and to then do so. In response to that situation, Mr Slaveski embarked upon what was, on any view, an extraordinary and protracted outburst of anger and abuse.

6 For reasons which I set out in detail below, I find that what occurred in court that morning is accurately set out on the corrected transcript which was marked for identification as "P1",[3] with the further additions and corrections, most of which are drawn from Mrs Slaveska's evidence, in the table annexed to this judgement. The further additions and corrections bring MFI P1 into accordance with the audio and video evidence. There was one correction which Mrs Slaveska suggested in her evidence which I have not accepted.

7 After judgment had been delivered, and after giving Mr Slaveski the opportunity to make submissions, the judge ordered that the prothonotary apply by originating motion for punishment for contempt of court alleged to be constituted by Mr Slaveski's conduct on 2 June 2010. The contempt alleged is said to arise out of 20 specific things which Mr Slaveski said that morning. Pursuant to that order, this proceeding was instituted.

8 The trial of this proceeding began on Tuesday 29 November 2011. At that time Mr Slaveski was represented by solicitors and by two counsel. On the morning of Thursday 1 December 2011 Mr Slaveski's solicitors and counsel withdrew. In so far as it was necessary for them to have leave to withdraw, I granted that leave. The circumstances of the withdrawal were controversial between Mr Slaveski on the one hand and his former legal advisors on the other. It is unnecessary to address that issue.

9 As indicated, Kyrou J had found it necessary to appoint a litigation guardian for Mr Slaveski. Because of the matters set out in the relevant rulings, I undertook an enquiry as to Mr Slaveski's fitness to plead. On 11 November 2011, I ruled he was fit to plead, relying upon a report of the psychiatrist, Dr Danny Sullivan, dated 9 November 2011.

10 In the course of the trial before me, Mr Slaveki's behaviour was acceptable. On the few occasions when he lost control of himself he regained it quickly, sometimes after a short break. When conducting the case himself after the withdrawal of his counsel, he had difficulty complying with evidentiary and procedural rules, but his difficulties in that respect were typical of those experienced by lay people attempting to represent themselves. Mr Slaveski was able to put the matters he wanted to put, and I had no difficulty understanding his position.

11 There were a total of 25 witnesses in the proceeding before me, four of whom had sworn affidavits and were not cross-examined. All the others gave evidence orally. Most of them had sworn affidavits which were tendered.

12 The proceedings before Kyrou J on 2 June 2010 had been digitally recorded by Legal Transcripts Pty Ltd, a transcript had been typed, and, separately, the judge's associate had videotaped the proceeding. The principal reason why so many witnesses were called was because of Mr Slaveski's contention that the associate's videotape had been tampered with. One suggested tampering was said to be the editing out of an assault upon him by a protective services officer ("PSO"). Whilst he was represented by counsel these matters were put to the various witnesses. Counsel found it necessary from time to time to emphasise to me that this was being done on Mr Slaveski's express instructions. Counsel also cross-examined on the basis that the alleged assault by the PSO had occurred off-camera, in other words beyond the area captured on the associate's videotape.

13 Whilst this is a civil proceeding in form, I determined that it would be conducted in every respect in a manner as close as possible to a criminal proceeding.[4]

14 When Mr Slaveski was represented I was told that the defence was that the prosecution could not prove beyond reasonable doubt the intention requisite for contempt. This was said to be because the protracted hearing in which he had been engaged, the incident which had occurred on the way to Court that morning, his wife's significant upset in the courtroom, and the contact with the PSOs, "triggered his significant anxiety and delusional conditions"[5].

15 After his legal advisors withdrew, the focus of the defence became three matters; namely, what was said to have been an attempt to murder Mr Slaveski and Mrs Slaveska on their way to Court that morning, what was said to have been an assault by a PSO on Mr Slaveski in the courtroom, and what was alleged to have been tampering and manipulation of the videotape by either the associate to Kyrou J or employees of the Victorian Government Solicitor's Office.

16 Before turning to those particular issues, I will set out the applicable legal principles and describe what happened in Court that morning.

17 The essence of the offence of contempt of court is conduct which amounts to an interference with, or obstruction to, or having a tendency to interfere with or obstruct the due administration of justice.[6]

18 Thus, to establish the offence of contempt of court it must be proved beyond reasonable doubt that conduct occurred which constituted an interference with or obstruction to the due administration of justice or which had a tendency to interfere with or obstruct the due administration of justice.

19 As to intent, proof of intention to interfere with or obstruct the due administration of justice is not an element of the offence. In Attorney-General for New South Wales v Dean,[7] the Court of Appeal (constituted by Gleeson CJ, Kirby P and Priestley JA) made this clear[8] and went on to observe:

It is sufficient that the prosecution show that the alleged contemptor had the intention to make the statements which, objectively, had the requisite tendency to interfere...[9]

20 In Attorney-General for the State of Victoria v Rich[10] Byrne J, in a passage then quoted in the judgment of Winneke P with whom Calloway and Buchanan JJA agreed on the appeal, [11] relevantly said:

In cases such as this where an accused addressed the judge on the bench deliberately in terms which are abusive and offensive ...I doubt very much whether this Court should be concerned with an inquiry as to what was the actual purpose of the contemnor...In a case like the present...where the acts themselves tend to interfere with the course of justice, it is sufficient that the court be satisfied that they were performed consciously and voluntarily.[12]

21 As it has been suggested that there might exist some difficulty or uncertainty as to the requisite intent,[13] I will make findings as to whether there was a specific intent to interfere in the administration of justice, although my view is that the law is correctly stated in Attorney-General for the State of New South Wales v Dean.

22 The presence or absence of a specific intent to interfere in the administration of justice is certainly relevant to penalty,[14] as that is a circumstance which renders the offence more serious.[15]

23 The reason why insulting and offensive behaviour before the presiding judge constitutes contempt of court has nothing to do with the personal dignity of the judge, or his or her personal feelings. Such conduct is contempt because it challenges the authority of the Court, interrupts the Court's proceedings, and detracts from the capacity of the Court to conduct proceedings which are dispassionate and rational both in fact and in appearance.[16]

24 Kyrou J's approach in referring this matter to be dealt with in a separate proceeding is in accordance with modern authority.[17] My experience in this proceeding leads me to suggest that in some cases, whilst the considerations set out in the modern authorities are clearly important, regard might also be had to dicta such as that of Lord Denning MR in Morris v Crown Office.[18]

25 For reasons which I will set out in detail below, my finding is that the transcript marked for identification as P 1 with the annexed corrections accurately sets out what occurred on the morning of 2 June 2010. That transcript (as corrected) sets out what can be heard on the associate's videotape[19] and on the audio recording of Legal Transcripts Pty Ltd.[20]

26 The hearing begins with a description by Mrs Slaveska of what she says had occurred on their way to Court that morning.

27 Mrs Slaveska was very upset. The judge was considerate and sensitive to her condition and asked whether she needed the matter to be stood down for a few minutes so she could compose herself. It was at that point that Mr Slaveski's interruptions began. For the first time the judge asked him to be quiet and to sit down.

28 Mrs Slaveska continued with her account of what she said had occurred. After a short time Mr Slaveski again began interrupting and for the second time the judge asked him to be quiet.

29 Mrs Slaveska continued, at which point Mr Slaveski began talking on a mobile phone (this may have been a call back from 000 emergency services) and the judge asked him to leave the Court while speaking on the phone.

30 When Mrs Slaveska had completed her account of what she says had occurred, the judge began attempting to explain to her why he was not prepared to embark upon an inquiry into what she said had happened.

31 At this point Mr Slaveski again began interrupting and was requested by the judge for the third time to cease doing so.

32 In my view it is clear that at this point[21] the trial judge was not going to adopt an attitude and a course of conduct towards what Mrs Slaveska said had occurred which was satisfactory to her and Mr Slaveski.

33 Mrs Slaveska was not prepared to accept the judge's decision about what he proposed to do and she argued with him about it, although she did so in a respectful manner at first, notwithstanding that she was upset.

34 After a short interchange between the judge and Mrs Slaveska along these lines, the judge made his fourth and fifth requests for Mr Slaveski to cease his attempts to interfere and interrupt.

35 The judge continued to attempt to explain to Mrs Slaveska why he was taking the approach he did, and she continued to dispute that with him. As this dispute progressed, at times her own statements approached the boundaries of what was acceptable. She began demanding whether the judge was aware of there being a plot to have them murdered. At around this time the judge made a further request to Mr Slaveski to be quiet, which was also referable to a mobile phone call (again perhaps from 000 emergency services).

36 Mr Slaveski was then requested for the sixth time (not counting the two requests relating to the mobile phone calls) to sit down and not interrupt in response to which he said: "You don't want to hear from me?", and then made a reference to the Court of Appeal, prompting the judge to make his seventh request that he sit down, with the judge warning him that otherwise he was going to remove him from the Court.

37 Mr Slaveski's removal from the Court was by no means an unusual circumstance in the proceeding. He had been ordered to be removed many times prior to 2 June 2010. In the course of the hearing before me, an aspect of the matter which Mr Slaveski himself relied upon and sought to highlight was that he had often been ordered to leave Court before and he maintained before me that he had always done so.

38 In response to the judge's suggestion that if he didn't sit down he was going to order his removal, the following interchange occurred:

MR SLAVESKI: Are you threatening me?

HIS HONOUR: No, all I said---

MR SLAVESKI: Are you threatening me?

HIS HONOUR: Call extra security, please. Mr Slaveski, you are excluded from the Court for the rest of today.

When Mr Slaveski said "Are you threatening me" the second time he did so speaking directly into Mrs Slaveska's microphone. His voice is loud. What he said, and the tone in which he said it, prompted the call for extra security and an order that Mr Slaveski was excluded from the Court. It was entirely appropriate, in my view, for the judge to respond in that way. According to the evidence of Kyrou J's associate[22] which I accept, at this point she activated the duress button.

39 In response to this situation Mr Slaveski said the first two of the 20 statements which are alleged to constitute contempt. The 20 statements are set out in the amended originating motion in sub-paragraph (c) of the particulars under paragraph 3. Each statement has a roman numeral. As I continue the description of what occurred that morning, the statements alleged to constitute contempt are in bold with the applicable roman numeral set out in those particulars.

MR SLAVESKI: No, no, no, no, this is a conspiracy. You know, your Honour---[i]

HIS HONOUR: Mr Slaveski, please be quiet.

MR SLAVESKI: ...- ---(indistinct) Victoria Police and everybody that want to kill us [ii]

The presiding judge asked Mr Slaveski to be quiet but he continued as follows:

MR SLAVESKI: Do you know anything about the murder?[iii]

HIS HONOUR: No, I don't know anything about any murder---

MR SLAVESKI: Yes, you probably do, your Honour.[iv]

HIS HONOUR: Please leave the Court now.

41 At this point one of the PSOs approached Mr Slaveski. Mr Slaveski maintains he was assaulted by that PSO and that that assault is not seen on the video because it has been tampered with, or, as his counsel put it before he withdrew, because it occurred out of the area captured by the cameras. The visual images on the video are very poor and the camera angle does not capture the entire courtroom. The interaction between Mr Slaveski and the PSO cannot be seen.

42 A second PSO had now entered the courtroom and Mr Slaveski turned his anger on the PSOs. The interchange was as follows:

MR SLAVESKI: Don't fucking touch me [v] Don't touch me. I will leave - I will leave---

HIS HONOUR: Security officers.

MR SLAVESKI: Hey, don't fucking touch me.[vi]

43 The judge instructed the two PSOs to sit down. Mr Slaveski continued his abuse:

MR SLAVESKI: Don't fucking touch me. Don't you fucking understand? Don't fucking touch me. I will get my tablets and I'm leaving you mother fuckers, you fucking tried to kill me today (indistinct)---[vii - as corrected].

HIS HONOUR: Mr Slaveski---

MR SLAVESKI: Do not fucking touch me. Do you fucking understand me, you mother fuckers? Do not fucking touch me [viii]

The only time the judge raised his voice in the entire hearing was when he was directing instructions to the security officers. He instructed them again to sit down.

44 According to the evidence of Kyrou J's associate[23] which I accept, at this point Mr Slaveski jumped on to a chair and then on to a table in the courtroom.

45 Mr Slaveski took up the judge's instruction to the security officers to sit down, using his own abusive language delivered in an aggressive and, in my view, threatening manner. The interchange was as follows:

MR SLAVESKI: Sit fucking down. Sit fucking down.[ix]

HIS HONOUR: Mr Slaveski---

MR SLAVESKI: Do not fucking touch me. [x]

46 For a moment the judge caught Mr Slaveski's attention. In response to the judge saying his name Mr Slaveski said "Yes, sir." The judge then said he was giving him the opportunity to leave peacefully, in response to which Mr Slaveski returned to his abuse of the PSOs saying "Do not fucking touch me". The judge repeatedly stated that no one was touching him. Mr Slaveski went on:

MR SLAVESKI: You fucking mother fuckers, you going to kill my fucking children---[xi]

HIS HONOUR: Madam Associate ---

MR SLAVESKI: Fuck you and the fucking State---[xii - as corrected]

HIS HONOUR: ---call extra security. Sit down, please. Sit down, please.

47 Mrs Slaveska said that an ambulance should be called. The judge observed that no one was going to touch Mr Slaveski and that he was being given an opportunity to leave peacefully, in response to which there was the following interchange:

MR SLAVESKI: I don't need a fucking opportunity to say ---[xiii]

HIS HONOUR: Just calm down, Mr Slaveski. We're giving you an opportunity to leave peacefully.

MR SLAVESKI: He is touching me.

HIS HONOUR: No one is touching you Mr Slaveski. Well, call an ambulance, Mrs Slaveska.

It should be noted that whilst the event was occurring Mr Slaveski's complaint was that one of the PSOs was "touching" him.

48 Mr Slaveski continued what, in my view, can fairly be described as a tirade, briefly interrupted at one point when the judge had got his attention. The following then occurred:

MR SLAVESKI: I'm sorry. How can you run a trial like this? You fucking pigs [?] you took my health away [xiv]

The only correction to the transcript which Mrs Slaveska suggested which I do not accept concerns the word "pigs" in the transcript. Mrs Slaveska says that her husband said "thing". I do not accept that. The audio by Legal Transcripts Pty Ltd is superior to the audio on the videotape. What I think I hear on the Legal Transcripts Pty Ltd audio is: "You fucking pig you, you took my health away". The standard of proof is beyond reasonable doubt. I am satisfied to that standard that he said "pig" or "pigs". I make no adverse finding beyond that.

49 Further PSOs arrived in the Court and the judge instructed them to sit down as well. Mrs Slaveska was on the phone attempting to call an ambulance. Mr Slaveski was continuing his angry outburst. The judge again asked him to leave the Court and the following then occurred:

MR SLAVESKI: OK. Don't make it come between you and me, your Honour, please.[xv]

HIS HONOUR: There' s nothing between you and me, Mr Slaveski. Just be calm and leave the court, please.

MR SLAVESKI: I get palpitations. Don't make it come between you and me, your Honour, please. [xvi - as corrected]

HIS HONOUR: I don't know what you mean, Mr Slaveski. Just be quiet ---

MR SLAVESKI: Any way you want to take it, your Honour.[xvii] Twenty-three police officers being sued, let's come to the trial of this court ---

50 His Honour gave an instruction to sit to a PSO and Mr Slaveski then said:

MR SLAVESKI: I had enough of this State and I had enough of this corruption, including this Supreme Court corruption. You going to threaten me? [xviii]

In my view Mr Slaveski's statement "You going to threaten me" was a reference back to the event which immediately preceded Mr Slaveski's tirade when the judge had said that if he did not sit down he was going to remove him from the Court, in response to which Mr Slaveski had asked twice: Are you threatening me?

I had enough of your threats, [indistinct] you crooks, you mother-fuckers, I had enough of you. You want to kill my children. Fuck you and the fucking State. I had enough of you, you fucking mother-fuckers. [xviii]

52 The judge reminded Mr Slaveski that he was being recorded and the following interchange then occurred:

MR SLAVESKI: You are part of this conspiracy, your Honour. You know about the murder that they plot on me and my wife today.[xix]

HIS HONOUR: Mr Slaveski, this incident is now going to be added to the contempt matters against you.

MR SLAVESKI: Good. Good. And you have a duty to send security downstairs to get my wife.

53 Notwithstanding what had occurred, the judge remained patient and calm and continued to politely request Mr Slaveski to leave the Court. Mrs Slaveska was still on the phone attempting to call an ambulance.

MR SLAVESKI: Your Honour, please stop the killing. Stop the hit on me and my wife, please.

HIS HONOUR: Mr Slaveski, it's best if you be quiet please.

MR SLAVESKI: Please, your Honour. I'm praying to you and your family and me and my family, please.

HIS HONOUR: Mr Slaveski, do not mention my family.

MR SLAVESKI: I-I don't want me family to be killed. Do you know about this hit?

55 The only occasion upon which the judge appears to have been disconcerted during the hearing was in this passage. These statements are not relied upon as constituting contempt. Mr Slaveski sounds in control of himself in this interchange.

56 Mr Slaveski then made the final statement which is said to constitute contempt:

MR SLAVESKI: Ten years of torture. Ten years of torture of Victoria Police. Fuck you, you mother fuckers. You going to kill me and my family.[x]

57 Before Mr Slaveski eventually left the Court the following interchange occurred:

MR SLAVESKI: For the sake of children, please, your Honour, tell them to stop this. Please. I beg you. Your Honour. Your Honour, please. Your Honour, can you look at me. Tell them to stop this, please.

HIS HONOUR: Mr Slaveski.

MR SLAVESKI: Please.

HIS HONOUR: Please leave the court.

MR SLAVESKI: Can you tell them to stop.

HIS HONOUR: Mr Slaveski, please leave the Court.

MR SLAVESKI: Do you give me your word that you will tell them to stop this.

HIS HONOUR: Mr Slaveski, I'm hearing this case. I'll hear the evidence and I'll make a decision. Please now leave the Court.

58 Again, Mr Slaveski sounds to be in control of himself in this interchange.

59 Mr Slaveski did leave the Court. Mrs Slaveska asked to go with him. The judge indicated that he would adjourn as soon as they had both left the Court, and he did so. He adjourned until further notice.

60 It is alleged that all 20 of the statements I have set out above in bold and by reference to roman numerals were abusive of the presiding judge, abusive of the Court, and disrupted and disturbed the proceeding. My conclusion is that that is the case.

61 It is alleged that the statements denoted as [i], [ii], [iii], [iv], [xiv], [xvii] and [xix] contained allegations of impropriety, partiality (incorrectly typed in the amended originating motion as impartiality) and corruption against the presiding judge. My conclusion is that they do, with the exception of the statement at (xvii). I do not consider that that statement contains that allegation.

62 It is alleged that the statements at [i], [ii], [iii], [iv], [xiv] [xviii] and [xix] contained allegation of impropriety, partiality (again incorrectly typed as impartiality) and corruption against the Court. My conclusion is that they do.

63 Finally, it is alleged that the statements at [xv], [xvi], and [xvii] contained threats to the presiding judge. My conclusion is that they do. I cannot say what the judge is being threatened with, but in my view he is being warned by Mr Slaveski that there would be undesirable consequences for the judge himself.

(a) Has the record of what occurred in Court on 2 June 2010 been tampered with?

(c) What occurred on the way to Court on the morning of 2 June 2010?

It is also necessary to address the issue of intent and the psychiatric and psychological evidence tendered and called by or on behalf of Mr Slaveski.

Has the record of what occurred in Court on 2 June 2010 been tampered with?

65 As I have already indicated, my finding is that MFI P1, with the corrections on the annexure, accurately sets out what was said in Court on 2 June 2010.

66 That document correctly transcribes what can be heard on the audio recording of the proceeding made by Legal Transcripts Pty Ltd.[24]

67 Evidence was called from the recording technician who set up and monitored the recording equipment that day,[25] and from four typists employed by Legal Transcripts Pty Ltd who typed out the transcript, who were not required for cross-examination.[26] An audio technician employed by Legal Transcripts Pty Ltd gave evidence that he had retrieved the digital recording of that morning's hearing and had produced a disc which contained it, together with other recordings of the trial.[27] At the time he gave evidence Mr Slaveski was represented by counsel. His evidence was not relevantly challenged.

68 The focus of attention at the trial, particularly after Mr Slaveski's legal advisors withdrew, was upon the videotape which was recorded by equipment at the tipstaff's desk in Court 13 where the hearing took place, separately from and independently of the audio recording by Legal Transcripts Pty Ltd.

69 The visual aspect of the videotape is very poor. It is in black and white and there are lines across it which make it difficult to see what is happening. After repeated viewing, it is possible to identify the various people and some of their actions in the body of the Court.

70 The person who recorded the video was an associate of Kyrou J's, Ms Yve Williams. In an affidavit she swore, which was tendered in this proceeding,[28] she deposed that there had been three fixed cameras in the courtroom and that in front of her there had been a screen receiving footage from those three cameras. She said there was a VHS recording device. She said that she adopted the practice of recording the proceeding on VHS tapes. She said she used 15 tapes which she rotated, unless told by the judge that a particular tape should be put aside and kept separately.

71 In her affidavit she also deposed the following:

The cameras are also set up to feed footage to the security guards' control room. However, I do not believe that this footage is recorded. I understand that the security guards' control room receives footage from numerous courts at the same time.

72 Ms Williams deposed that on 2 June she placed the tape in the machine and turned it on. She deposed that when the court adjourned at about 10.46am she removed it and, on Kyrou J's instructions, put it aside. She said that on 25 May 2011 she provided that tape to the prothonotary of the Supreme Court. She produced the tape, and said that it accorded with her recollection of what had occurred on the morning of 2 June 2010.

73 In cross-examination she agreed that the quality of the video was bad. She said she knew it was going to be bad because it had appeared the same way on her screen each day. She said that no-one had been particularly concerned about the poor visual quality at the time as the main concern was to pick up anything spoken. She said the quality of what she had been seeing on her screen at Court was the same poor quality which now appeared on the video.

74 She was asked whether she had made enquiries with the guards' room about whether they had recorded the feed coming from the Court and she responded:

I did make an enquiry a couple of weeks ago. I rang the security guard control room, just to ask if - I asked them about the screens that I had seen at the desk, and he said yes, it's all changed now, because they changed over systems. I said at the time was any of it recorded, and he said no, it's never been recorded, it's basically so we can see at any time if something happening, more if a court's closed and someone happens to enter a court, so that they can see.

75 She said the person she was speaking to was someone she thought was the security guard manager, suggesting the name Dragon Rastoski.

76 The prothonotary of the Supreme Court, Rod Ratcliffe, swore an affidavit, which was tendered,[29] in which he deposed to the fact that he had received the video from Yve Williams, placed it in his safe, and then handed it over to the Victorian Government Solicitor's Office. In cross-examination he confirmed that no one had touched the video other than himself while it was in his possession.

77 Evidence was also given by the assistant Victorian Government Solicitor, Steven Lee, who swore two affidavits which were tendered.[30] Amongst other things he deposed that he had watched the video and that it contained what he described as "four parts". The first was the footage in the courtroom prior to the commencement of the hearing on the morning of 2 June 2010. The second was the footage of the courtroom during that hearing. The third was described as further footage of the courtroom immediately after the conclusion of the proceeding, and the fourth was described as further footage of Mr Slaveski's proceeding.

78 Having watched the video in full myself Mr Lee's description is accurate, as far as it goes. The video shows the courtroom before, during and after the relevant hearing on the morning of 2 June 2010 (being what Mr Lee describes as the first three "parts"), and then there is footage of two earlier hearing dates, the first being on 28 May 2010 and the second being on 26 May 2010 (Mr Lee's fourth "part"). This is consistent with Ms Williams' description of what she was doing in rotating videotapes, taping over earlier hearings, and putting the video aside when instructed to do so. Thus, the earliest date is at the end of the tape, the intervening date is what might be described as in the middle (it having been taped over the earlier material), and the most recent material (2 June) is first on the tape. After 2 June, the tape was put aside and no further material was recorded over it.

79 Mr Lee also deposed to the fact that the part of the videotape which recorded the hearing on the morning of 2 June 2010 was copied on his instructions by a systems administrator in the Victorian Government Solicitor's Office and a DVD was made of that section. He produced that DVD which has a label on it, which relevantly reads:

Footage of hearing before Justice Kyrou

2 June 2010

Extract.

80 In further evidence-in-chief Mr Lee said that the video tape had been kept at the Victorian Government Solicitor's Office in a safe. In cross-examination he was asked about the process of production of the extract onto the DVD.

81 The PSO who was on duty in the courtroom that day was a Mr Bruce McClean. He is the person who is alleged to have assaulted Mr Slaveski. I will return to that issue. Mr McClean swore an affidavit on 21 November 2011 which was tendered.[31] He deposed that the extract on the DVD accurately depicted and recorded what had occurred in Court that morning whilst Kyrou J was presiding.

82 A number of defence witnesses gave evidence relevant to the issue of the accuracy of the videotape.

83 Mrs Slaveska gave evidence. She watched the original videotape from the time when Kyrou J came onto the bench until she and Mr Slaveski left the Court whilst in the witness box.

84 Mrs Slaveska said that the tape accurately recorded what she had said and done.

85 The video of the hearing that morning was played to Mrs Slaveska during her evidence in chief in short sections. She made comments on each section, gradually working her way through it. At no time did she suggest that the video was inaccurate, in that it recorded something which had not occurred or failed to record something which had occurred.

86 Mrs. Slaveska's evidence-in-chief was not concluded when Mr Slaveski's solicitors and counsel withdrew. She had not at that point completed her progressive review of the video. After the withdrawal, she continued moving through the events in the hearing before Kyrou J that morning as recorded on the video tape, section by section, commenting on both the video and the transcript (MFI P1). She then took me through that transcript correcting and adding things said, by reference to what could be heard on the video. As I have indicated, I accept the accuracy of all of her corrections and additions with one exception.

87 Prior to Kyrou J making the order which led to the institution of this proceeding a copy of the transcript was sent to Mr Slaveski and an email purportedly written by Mr Slaveski was forwarded to the Court by Mrs Slaveska. A copy of this email is exhibit SJL3 and to one of the affidavits of Mr Lee. In cross-examination it was put to her was that there is no suggestion in that email that the transcript does not correctly record what had occurred. She responded to that proposition saying that at that time they didn't have the video or audio to compare it with.

88 The important point in this respect is that by the time Mrs Slaveska was in the witness box she had had the opportunity to compare the transcript with the video and, indeed, she did so in the witness box, taking me through the transcript and making corrections and additions. She never suggested that the video did not accurately record what had occurred (subject to the obvious limitations of its poor visual quality).

89 Mr Slaveski himself gave evidence about the events on 2 June 2010. At first, he maintained that he could not remember what had happened.

90 The video was played and, like his wife, he went through it in sections, making comments and observations. One of the main points he made was that he had said that he was leaving prior to what he said was an assault by a PSO. In the account which he gave while watching the video, he maintained that he could remember what occurred up to the point where he was assaulted. He maintained that he could not remember beyond that. I will return to the issue of what he said about the assault.

91 In cross-examination, he would not accept that he had said what is recorded on the video, but he would not deny it either. He said that he could not recall.

92 Mr Slaveski called as a witness Mr Daniel Jones, who is one of the instructing solicitors from the Victorian Government Solicitor's Office in relation to this proceeding. In his evidence, he said that he had brought the video to Court out of the safe in the Victorian Government Solicitor's Office. He denied that he was a party to any tampering. Mr Slaveski put it to him that he had instructed IT studio engineers to "cut the part where I was assaulted". He denied that.

93 Mr Slaveski called Mr Dimitrija Tancevski, who was in the Court that morning. Mr Tancevski can be seen on the video. He told me that he had known Mr Slaveski's father in Macedonia and that he knew Mr Slaveski and his family. He gave evidence through an interpreter.

94 The video was played to Mr Tancevski in the witness box. The only respect in which he suggested that it was not accurate was that he said that at one stage the judge had said to the security officers, "Stop, don't touch him, don't touch him", and that he could not hear that on the tape.

95 In cross-examination, a section of the transcript was read to him in English and he was asked whether he could understand it. Except for the word "No", he said that he could not.

96 In the evidence led on behalf of Mr Slaveski, only two things were suggested to have been edited in or out of the video. One was the assault. The other was Mr Tancevski suggesting that the judge had said, "Stop, don't touch him, don't touch him". Mr Tancevski's capacity to recall English is not reliable, given his limited understanding of it and, whilst the judge may not have said those particular words, he certainly said things which were very like them and which had that meaning.

97 Mr Slaveski called the systems administrator at the Victorian Government Solicitor's Office, Mr Rafe Todd, who had made the extract on DVD. He gave evidence that he had downloaded the entire contents of the video onto a hard drive, that he had made DVD copies of the hearing before Kyrou J on the morning of 2 June 2010, and that he had also made DVD copies of the entirety of the video. He said he had given all of these DVDs to the legal assistant to Mr Lee.

98 Finally, Mr Slaveski called Mr Dragan Stojanoski, who is the ISS site security manager at the Supreme Court. His evidence was that as at 2 June 2010 the security office had no connection at all with the in-court cameras. They did not monitor them and they did not record them. He said this position has now changed and that the security office now monitors cameras in every Court. He gave evidence that this system had been in place since it was installed at the end of last year. He was asked whether he had invoices in relation to the installation and he said that he did. Those invoices were produced to Mr Slaveski the following morning. Mr Slaveski told me that he did not wish to tender them.

99 Mr Slaveski places a sinister interpretation on almost every aspect of the dealings with the video by Kyrou J's associate and the Victorian Government Solicitor's Office. The difference between Ms Williams' understanding of the position as to monitoring and Mr Stojanoski's evidence as to the actual position was seen by him to be particularly significant. It was on the basis of that difference, amongst other things, that Mr Slaveski made an application at the end of his case to have Ms Williams re-called, which I refused. He also sought an adjournment for a period, which would necessarily have been several weeks, to have a person said to be a video expert examine the video tape. I refused that adjournment.

100 I find that Mr Slaveski's allegations of tampering made against Court staff and employees of the Victorian Government Solicitor's Office are without foundation. I accept the evidence of Ms Williams, except to the extent that she differs from Mr Stojanoski. Mr Stojanoski has direct knowledge. Ms Williams was repeating her understanding of what she had been told. What is more important is the following:

(1) There is an independent audio recording of the proceeding, which was made by Legal Transcripts Pty Ltd, which was not challenged at any time, and which is identical to the audio on the video.

(2) With the exception of the alleged assault, to which I will turn in a moment, and the one statement referred to by Mr Tancevski, which I have already dealt with, there was no witness who had been present in Court who suggested in evidence that the video records something that did not occur or fails to record something that did occur, and that includes both Mr Slaveski himself and his wife.

101 The video does record what occurred. Extensive court time, and the time and trouble of Court staff, transcript personnel, solicitors, and others was needlessly wasted pursuing an issue in relation to which Mr Slaveski alleged serious wrongdoing, to no apparent purpose, and without any proper foundation. I make no criticism of Mr Slaveski's former legal advisors in this respect.

102 After Mr Slaveski's outburst began, a PSO, Mr McClean, who had been present in Court, approached him. A second PSO entered the Court after Mr McClean had sought his assistance, and three further PSOs entered the Court later, after additional assistance had been called for by the judge and after his associate had activated the distress button.

103 Mr Slaveski maintains that Mr McClean assaulted him by grabbing him on the upper left arm and, in some manner that was not clear to me, by also injuring his ribs on the left hand side.

104 Ms Williams, in her affidavit, deposed that PSO McClean had briefly left the Court room and returned with another PSO, Heyu Wang, shortly afterwards. She then deposed as follows:

"PSO McClean then moved towards Mr Slaveski. His back was towards me and he approached Mr Slaveski from the side. I recall that he put his open hand up towards Mr Slaveski's shoulder and said something like, 'Come on, mate'. I could not tell whether he made physical contact or not".

105 In cross-examination, she agreed that PSO McClean may have touched Mr Slaveski's arm, but that she could not say for sure.

106 The recording technician, Ms Favasuli, was close by. When asked in her evidence whether she had seen Mr Slaveski touched by a security officer, she said that she did not know and could not recall.

107 PSO McClean himself, in his affidavit, deposed that after the outburst began, he stepped out to ask PSO Wang to assist. He deposed that when he returned he approached Mr Slaveski and he lifted his arm so as to place his hand on Mr Slaveski's arm. He said that he did not make any physical contact and that he moved away when he was instructed to do so by the judge.

108 In cross-examination, he agreed that he had been very close to Mr Slaveski, but said that he had not touched him.

109 In re-examination, Mr McClean said that he was satisfied that at the time when he approached Mr Slaveski, Mr Slaveski was a person affecting the good order and management of the Court and that he had formed the opinion, provided for by s 3(9) of the Court Security Act 1980, which would entitle him as an authorised officer to remove Mr Slaveski from the Court. He also said that he considered that what his Honour had said constituted a direction to him to remove Mr Slaveski.

110 PSO Wang, in his affidavit, deposed that he had seen PSO McClean lift his arm, but did not see him touch Mr Slaveski. He said that he did not touch him. In cross-examination, it was put to him that PSO McClean had grabbed Mr Slaveski's arm and grabbed the side of his body, and PSO Wang said that he did not see that. He agreed that PSO McClean was close to Mr Slaveski.

111 The other three PSOs who attended also swore affidavits. They arrived after the alleged assault had occurred.

112 One of the witnesses called by the defence was a general practitioner who has been managing Mr Slaveski's psychological condition, Dr Duggal. Amongst other things, Dr Duggal produced the notes of a colleague of his, Dr Strangio, who had seen Mr Slaveski at about 5.00pm on 2 June 2010. The notes were tendered.[32]. They refer to "superficial bruising tl [sic] left forearm".

113 Mrs Slaveska's relevant evidence as to the assault was as follows:

"I was still talking to his Honour, and I heard Mr Slaveski, 'Don't touch me'. So I turned, I saw the PSO on Mr Slaveski with his hand, and Mr Slaveski was going like this to - to get away from him".

114 Mrs Slaveska gave a demonstration of what had occurred, which seemed to me to be similar to a demonstration which Ms Williams had given of the PSO holding up an open hand at about shoulder height.

115 In her cross-examination, Mrs Slaveska's evidence became firmer. She used the term "grabbed". She confirmed that the contact was in the middle area of Mr Slaveski's upper arm.

116 Mr Slaveski's own version of the assault was that he was moving towards the table to get his things, intending to leave, when the security guard approached him with his hands "open" and "something just pricked me here at the back of the ribs, and I was grabbed on my arm". By reference to the video he identified the assault as having occurred at the point where he first says, "Don't fucking touch me".

117 It will be recalled that at the time, that is when in the Court, Mr Slaveski's complaint was of being "touched", in response to which the judge had said that no-one was touching him. I find it impossible to believe that if any PSO had done anything more than touch him he would not have loudly protested that fact.

118 Mr Tancevski, in his evidence, said that a security officer grabbed Mr Slaveski by the left hand. He later said that he had seen a red mark on Mr Slaveski's arm. I think there may have been a problem in translation between "hand" and "arm". In cross-examination, he said the area where he had been grabbed was at the rear of Mr Slaveski's left bicep.

119 I am unpersuaded that any security officer touched Mr Slaveski at all. It is possible PSO McClean did touch him. If he did, he had every justification for doing so in the circumstances.

120 At the point where Mr Slaveski says the assault occurred, Mr Slaveski had already behaved in such an abusive and threatening manner as to prompt the judge to call for extra security and to order his exclusion from the Court. In response to that, Mr Slaveski had accused the judge of being party to a conspiracy to have him murdered. At that point, Mr Slaveski's anger was escalating.

121 It does seem that his anger escalated further when PSO McClean approached him. PSO McClean was doing his duty when he did so, and was acting consistently with the directions of the judge. He may have touched Mr Slaveski. There was no assault. The patience and forbearance of both the judge and the PSOs in the circumstances was, in my view, extraordinary.

What occurred on the way to Court on the morning of 2 June 2010?

122 The reason why Mrs Slaveska and Mr Slaveski were agitated when they arrived at Court on the morning of 2 June 2010 was because of what they say was an attempt made on their lives by police officers on the Metropolitan Ring Road.

123 Mrs Slaveska gave an account of what had occurred to Kyrou J. She said that a police officer in a marked police car had ordered them to pull up, calling her husband a "fucking idiot", and that this officer, according to Mrs Slaveska, "put his hand towards the gun".

124 Mrs Slaveska, in her evidence in chief before me, repeated that description. She said:

125 Mr Slaveski tendered film which had been taken on a mobile phone, a recording of "000" calls made by and to Mr and Mrs Slaveski that morning, and a recording of police communications, all of which was played in the course of Mrs Slaveska's evidence. None of that material showed the officer with a gun, or moving towards a gun. When I asked her what it was in the film which she saw as being significant, she said that it showed that it really had happened and that they had been chased on the freeway.

126 In cross-examination, it was put to her that the film did not show any gun and she responded that there had been other film which had shown the gun, but that police in New South Wales had taken it.

127 Whilst Mrs Slaveska was giving evidence, a policeman in uniform was sitting in the Court. Mr Slaveski asked his wife whether that was the man she saw on the freeway that pulled the gun, and she said that that was the person.

128 The police officer in Court had been subpoenaed by Mr Slaveski's lawyers before they withdrew. He was called by Mr Slaveski and I gave him leave to cross-examine him.

129 The police officer was Senior Constable Busic. A statement he had made in relation to the incident on the freeway was tendered.[33]. In substance, he said that he was stationed with the Fawkner Highway Patrol, and that at about 9.30am on 2 June 2010 he was on the Edgars Road on-ramp of the Western Ring Road, checking the speed of vehicles using a speed detector. He said he observed a blue Mercedes, which turned out to be Mr Slaveski's vehicle, travelling at 121 kilometres per hour. He said that he activated his lights and pursued the vehicle. He said that the vehicle reduced speed and came to a complete stop in the third lane of the freeway, a manoeuvre which he considered to be extremely dangerous and which prompted him to yell at the driver, including yelling: "Get off the freeway, you fucking idiot". He said that the vehicle performed other dangerous manoeuvres and that he called for assistance. He said the vehicle moved off and he followed for a time with his lights flashing and his siren on. He said other police attempted to intercept the vehicle.

130 In his oral evidence, Senior Constable Busic said that at all times his firearm was in a holster on his right side. He was asked about why Mr Slaveski had not been charged with speeding for 11 months after the incident and he said that he had been told by his superiors that he was a vexatious complainant and that he was not to charge him until he was told that he should.

131 In his evidence, Mr Slaveski said that Senior Constable Busic, when he asked him to pull up, had called him a "fucking idiot" and "he had his hand on the gun, Your Honour". Mr Slaveski said that he had this on film, but that police in Sydney had taken it from him.

132 A subpoena was issued to the New South Wales police to produce any film they had of the incident on 2 June 2010. A DVD was produced which contained a file which was the same footage of the incident which had already been tendered and which I had already seen.

133 I reject the suggestion that Senior Constable Busic threatened Mr Slaveski and Mrs Slaveska with a gun on the Western Ring Road.

134 I found Senior Constable Busic's evidence to be clear and credible, and I accept it.

135 Mrs Slaveska never suggested anything more than a movement towards the gun, except in answer to a leading question from her husband. I am willing to give her the benefit of the doubt and not find she was being deliberately untruthful, she may have misinterpreted what occurred.

136 I found Mr Slaveski's evidence to be unreliable on this and on all controversial issues. His selective recall of the events in the courtroom was not credible. I would not accept anything he said which was not corroborated by other evidence.

137 It was put to Senior Constable Busic by Mr Slaveski that he had been part of a conspiracy by police officers to murder Mr Slaveski that day in order to bring the case he had brought against other police to an end. Senior Constable Busic denied that. It is necessary to say that I find this allegation to be baseless and I reject it without hesitation.

138 The Slaveskis were chased by the police on the Western Ring Road on the morning of 2 June 2010 before they came to Court. They were chased because a member of the highway patrol detected Mr Slaveski speeding and attempted to apprehend him, without success.

Intention and the psychiatric and psychological evidence

139 Prior to the trial commencing, counsel on behalf of Mr Slaveski told me on two occasions that there was no issue as to a defence of mental impairment.[34]

140 Dr Sullivan gave evidence in the trial on behalf of Mr Slaveski. A report he had prepared on 30 November 2009 was tendered. Dr Sullivan said that he had seen Mr Slaveski again in October of this year.

141 Dr Sullivan said Mr Slaveski suffered from a generalised anxiety disorder and a delusional disorder. He said that he had fixed, unshakable beliefs. He said that he characterises events which others would see as irrelevant as being confirmatory of these beliefs. He said he is profoundly fearful of police and pre-occupied with police. In cross-examination, he said that he had seen the video of what had occurred in court on 2 June 2010, and that there was nothing he saw there which suggested that Mr Slaveski was not in significant voluntary control of his actions. He agreed that he was not suggesting for a moment that Mr Slaveski's actions had been other than conscious and voluntary.

142 I have already referred to Mr Slaveski's general practitioner, Dr Duggal. He also gave evidence as to Mr Slaveski's psychological condition. He said that he was managing conditions he described as chronic anxiety, recurring panic, agitation, and depression. He said a diagnosis of post-traumatic stress disorder had been made by a psychologist, Ms Ranaweera. He said that he was treating Mr Slaveski's symptoms and had not diagnosed him. In cross-examination, he agreed that he had described Mr Slaveski as being in a "fragile" mental state. He agreed that that meant much the same thing as saying that he had a "short fuse".

143 Mr Slaveski's psychologist, Ms Shalika Ranaweera, gave evidence. She had watched the video at Mr Slaveski's request before attending Court. She said that she had diagnosed Mr Slaveski as suffering from post-traumatic stress disorder with high anxiety and clinical depression. She said that his decision-making can be impaired. In relation to the video, she said that it showed him in a state of anxiety and panic and that he was agitated and distressed. In cross-examination she agreed that from a psychological point of view she could not put it any higher than that, and that she could not specifically comment on his psychological state on the morning of 2 June 2010, but could only make general observations.

144 A psychiatrist who had assessed Mr Slaveski for the purposes of the Court proceeding before Kyrou J in 2009 was also called to give evidence. This was Dr Rodney Farnbach. He is not treating Mr Slaveski. He was shown the footage on the freeway. He said that in that footage, Mr Slaveski was displaying anger. He said fear was "not apparent".

145 Dr Farnbach said that his diagnosis of Mr Slaveski had been post-traumatic stress disorder, depression, and panic disorder. When asked what was the trauma, he said it was the alleged incident with police, which must be a reference to the incident or incidents the subject of the civil proceeding before Kyrou J.

146 Whilst in the witness box, Dr Farnbach was also shown the video of what had occurred in Court on 2 June 2010. He agreed that Mr Slaveski was very agitated. He said that what he saw was: "Actions of someone who is totally convinced that he is right and cannot bear any ... opposition or denial or anything which ... he interprets as denial". He was asked about Mr Slaveski's medication and he said that in his opinion, the medication he was taking was appropriate for his condition. The evidence is that he is taking Xanax and Aropax.

147 He was asked about "flashbacks" and he said that this is a phenomenon which can occur with post-traumatic stress disorder where an experience is actually "relived". He said that this can be an overwhelming experience when it occurs.

148 In cross-examination, he agreed that he could only speculate on what had been Mr Slaveski's capacity to control his actions on the morning of 2 June. He agreed that he could do no more than speculate without having performed a mental state examination at the time.

149 It was not suggested that there is in this case a defence of mental impairment and the evidence does not establish any such defence.

150 Insofar as the psychological and psychiatric evidence had relevance on this hearing (as to whether contempt has been established), it could only be on the issue of whether Mr Slaveski's actions were conscious, voluntary and deliberate, and on the issue of what intent he had at the relevant time.

151 Mr Slaveski's actions were conscious, voluntary and deliberate. No evidence suggested otherwise.

152 It is noteworthy that on three occasions during his tirade he was able to compose himself sufficiently to address the judge in terms which, in my view, were calculated to further what he perceived to be his interests. Those occasions were when he said "Yes, sir", the reference to family, and the plea at the conclusion where he was, in my view, attempting to draw the judge into some kind of implicit acknowledgement of the validity of his allegations.

153 As to intention, I find that Mr Slaveski intended to be abusive and disruptive, intended to allege impropriety, partiality and corruption, and intended to threaten the judge. In my view, this is clear from what he said and the way he said it.

154 His conduct had a clear tendency to interfere with and obstruct the due administration of justice. He challenged the authority of the Court, he alleged it was corrupt, and he interrupted the Court's proceedings. His conduct detracted from the capacity of the Court to conduct proceedings which are dispassionate and rational both in fact and in appearance

155 In purely practical terms, his conduct had the effect of terminating the proceeding, at least temporarily.

156 Did he specifically intend to interfere with or obstruct the due administration of justice? I find that he did, in that he intended to be abusive and threatening and to allege corruption and, indeed, complicity by the judge in conspiracy to murder. He intended to challenge the authority of the judge and the Court, he intended to interrupt the proceeding in order to do so, and he intended to loudly assert in the face of the Court itself his allegations of corruption.

157 Did he specifically intend to bring about the termination of the hearing? I am not satisfied that he formed that specific intention. My finding is that he did not care about the obvious disruptive consequences of his conduct. He intended to give vent to his anger and to make his allegations whatever the consequences for his case which was then being heard.

Corrections and additions to MFI P1 which are accepted as accurate

"That's why can get a (indistinct) for three judges"

"Don't fucking touch me. Don't you fucking understand? Don't fucking touch me. I will get my (indistinct) and I (indistinct) you mother-fuckers, you fucking tried to kill me today (indistinct) ---"

"Don't fucking touch me. Don't you fucking understand? Don't fucking touch me. I will get my tablets and I am leaving you mother-fuckers, you fucking tried to kill me today (indistinct) ---"

"... in a mood like that he could have a stroke so please send ..."

"... in a mood like that he could have a stroke or a heart attack so please send ..."

[1] [2010] VSC 441.

[2] [2009] VSC 423 and [2009] VSC 596.

[3] The document was handed to me and marked for identification as "P1" as an aide memoir. I was told it contained corrections to the original transcript which had been agreed between counsel: Transcript p.8

[4] See: Rich v Attorney-General for the State of Victoria [1999] VSCA 14 at [4] and Witham v Holloway (1995) 183 CLR 525, 534 and 549.

[6] In re Dunn; In re Aspinall [1906] VicLawRp 84; [1906] VLR 493, 497; Parshuram Detaram Shamdasani v King - Emperor [1945] AC 264, 268; Lane v Registrar of Supreme Court of New South Wales [1981] HCA 35; (1981) 148 CLR 245, 257; and Lewis v Judge Ogden [1984] HCA 28; (1984) 153 CLR 682, 688.

[7] (1990) 20 NSWLR 650.

[8] (1990) 20 NSWLR 650, 655.

[9] (1990) 20 NSWLR 650, 656.

[10] [1998] VSC 41.

[11] [1999] VSCA 14.

[12] At first instance [1998] VSC 41 at [16]; and on appeal [1999] VSCA 14 at [18].

[13] See: Registrar of the Supreme Court of South Australia v Moore-McQuillan [2007] SASC 447 at [26] - [30].

[14] Attorney-General for New South Wales v Dean (1990) 20 NSWLR 650, 656.

[15] Director of Public Prosecutions v Johnson [2002] VSC 583 at [9].

[16] In re Dunn; In re Aspinall [1906] VicLawRp 84; (1906) VLR 493, 497; Director of Public Prosecutions v Johnson [2002] VSC 583 at [13] [sub-paragraph (c)].

[17] See: Clampett v Attorney-General (Commonwealth) [2009] FCAFC 151.

[18] [1970] 2 QB 114, 122.

[24] Exhibit OC1 to the affidavit of Oscar Ciernohorsky sworn 24 November 2011 tendered as Exhibit P7. There is a typographical error on the exhibit sheet which was corrected at transcript 107.

[25] Melissa Favasuli. Her affidavit of 24 November 2011 was tendered as Exhibit P2. She was cross-examined but not relevantly challenged.

[26] The four typists were Nicole Stroumos, whose affidavit sworn 25 November 2011 was tendered as Exhibit P3, Elizabeth Wedderburn, whose affidavit of 25 November 2011 was tendered as Exhibit P4, Corinne Whyte, whose affidavit of 25 November 2011 was tendered as Exhibit P5 and Catherine Gammon, whose affidavit of 25 November 2011 was tendered as Exhibit P6.

[34] Transcript 21/10/11 p 2 and 11/11/11 p 1.