Misiuk v Chief Executive of the Department of Corrections

[2010] NZCA 480

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA672/2010 [2010] NZCA 480

BETWEEN  PAWEL MARIAN MISIUK Appellant

ANDTHE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:         15 October 2010

Court:            Randerson, Stevens and Keane JJ Counsel:  Appellant in person

A R Longdill and N Whittington for Respondent

Judgment:      15 October 2010

Reasons:        20 October 2010

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Randerson J)

MISIUK V THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS CA672/2010  15

October 2010

Introduction

[1]      Mr  Misiuk  has  appealed  against  a  decision  of  Dobson  J  declining  an application for a writ of habeas corpus.1    He is currently detained in the Auckland Central Remand Prison but submits his continued detention is unlawful.

[2]      Initially, this matter came before a panel comprising Chambers, Stevens and Keane JJ on 13 October 2010.  It was adjourned until 15 October 2010 so that the Crown  could  provide  further  information  requested  by  the  Court.    The  matter resumed on 15 October 2010 but, because Chambers J was overseas, Randerson J was substituted.  In the circumstances, the appeal proceeded de novo.

[3]      On our own initiative we have substituted the correct respondent to this appeal.

[4]      At the conclusion of the hearing on 15 October 2010, we announced our decision that the appeal was dismissed with reasons to follow.   These are those reasons.

Background

[5]      The appellant’s claim principally rests on what occurred following a bail appeal heard in the High Court at Auckland on 29 May last year.2   On that occasion, Winkelmann J, Chief High Court Judge, revoked bail.  By error, the administrative requirements of s 44 of the Bail Act 2000 were not complied with.  No warrant for the appellant’s detention in custody was issued as required by s 44(1) but the appellant was nevertheless taken into custody and remanded to appear in the District Court.  He has  remained there ever since and now faces a jury trial in the District Court in November 2010 alleging 11 counts mainly involving alleged breaches of a

protection order but also including charges of theft, burglary and threatening to kill.

1      Misiuk v Superintendent of a Penal Institution HC Auckland CIV-2010-404-6242, 23 September

2010.

2      Police v Misiuk HC Auckland CRI-2009-404-144, 29 May 2009.

[6]      Just four days after the decision of Winkelmann J, the appellant appeared in the District Court before Judge Kiernan on 3 June 2009.  The Judge remanded him in custody on a warrant issued that day until 6 August 2009 when a further warrant was issued by Justices of the Peace until 12 October 2009.  Since then numerous warrants have been issued by the District Court and the appellant has sought bail on several occasions.

[7]      On 21 December 2009, Courtney J3  dismissed an appeal by the appellant against the refusal of bail in the District Court by Judge Gittos in September 2009. An appeal from Courtney J’s decision was dismissed by this Court on 20 April 2010 for want of jurisdiction.4   This Court observed, however, that there was no error of principle demonstrated in respect of Courtney J’s decision. 5

[8]      On 17 February 2010 Judge Wilson QC granted bail on two informations faced by the appellant while noting that he remained in custody on other charges. On 2 March 2010, Judge Field declined the appellant bail on a number of other informations.

The decision under appeal

[9]      Dobson J dismissed the appellant’s application for habeas corpus on a variety of grounds.  While accepting that s 44(1) of the Bail Act had not been complied with, he noted that s 136(1) of the Summary Proceedings Act 1957 (imported by s 42 of the Bail Act into bail appeals under s 41 of that Act) gave authority for the appellant to be arrested without warrant by any constable or prison officer at the conclusion of the hearing before Winkelmann J.

[10]     The Judge noted that a Registrar’s Certificate had been issued recording the orders made by Winkelmann J which the appellant had been aware of since he was present in Court when the Judge gave her decision.   The Judge considered the

3      Police v Misiuk HC Auckland CRI-2009-404-144, 21 December 2009.

4      Misiuk v R [2010] NZCA 142.

5 At [17].

Certificate would have been appropriate if the High Court had been exercising its originating bail jurisdiction.

[11]     Dobson J considered in the circumstances that the error was one of form rather than substance and that it was competent for another Judge, relying on the judgment of Winkelmann J of 29 May 2009, to complete a warrant consistent with the outcome ordered by her.  That was so despite the exceptional lapse of 16 months between a remand in custody and completion of the warrant.

[12]     The Judge accepted a submission by the respondent that subsequent warrants issued in the District Court were sufficient to justify the appellant’s detention.  He was satisfied that, in the light of later decisions when the appellant had again been denied bail, the subsequent warrants were independently issued and not tainted by any deficiency in the steps taken after Winkelmann J’s decision of 29 May 2009.

[13]     On 5 October 2010 the appellant filed a fresh application for a writ of habeas corpus.  This was dismissed by Dobson J on 7 October 2010.  There is no appeal from that decision.  On the same date, Dobson J also dismissed a fresh application by the appellant for bail, finding that he had no jurisdiction to grant bail.

Submissions

[14]     The appellant submitted that the failure to issue the warrant required  by s 44(1) of the Bail Act at the time of the hearing before Winkelmann J on 29 May

2009 meant that all subsequent warrants issued for his commitment to prison were also invalid.  To the contrary, Ms Longdill for the respondent submitted there were a number of warrants subsequently issued by the District Court which were valid on their face and should be treated as lawfully authorising the appellant’s continued detention in custody.  She relied particularly on five warrants which we will shortly discuss.

[15]     Apart from the five warrants mentioned, Ms Longdill also referred to a sixth (issued by Judge Tremewan on 6 September 2010) but Ms Longdill accepted that this warrant expired at 9am on the day of the hearing before us (15 October 2010).

We also note that it related to one of the two informations in respect of which Judge

Wilson had granted bail on 17 February 2010.

The warrants relied upon by the respondent

[16]     The appellant submitted that, for various reasons, the five warrants relied upon by the respondent were invalid.  We deal with each in turn.

Warrant issued on 18 August 2009

[17]     This warrant of commitment for trial was issued under s 171 of the Summary

Proceedings Act in respect of one count of breach of a protection order (CRN ending

3797).  The warrant was in Form 43 and was directed to “every Constable and to the Manager of the Prison at Auckland Central Remand Prison”.   It directed the constables to deliver the appellant to the prison and directed the Manager to receive him into custody and to detain him pending his trial.  The warrant was signed by the two Justices of the Peace who committed the appellant for trial.

[18]     We are satisfied that this warrant was valid on its face and authorised the appellant’s detention in custody from the date of its issue until the date of his pending trial.   We do not accept the appellant’s submission that the warrant was invalid because it did not specify his trial date.  Neither the Summary Proceedings Act nor Form 43 requires the warrant of commitment to include the hearing date. That is a matter of administration which the Court undertakes by notification separately to the prison authorities in respect of persons remanded in custody.

Warrant issued on 16 March 2010

[19]     Two Justices of the Peace issued a warrant for commitment under s 171 in relation to seven of the informations included in the indictment upon which the appellant was committed for trial.  Ms Longdill accepted there appeared to have been an error in relation to this warrant since it purported to authorise the detention of the appellant pending his call-over in the Auckland District Court on 11 May 2010.  It

ought to have been expressed to remain in place until trial.  She accepted there was a potential issue as to whether this warrant remained in force.

[20]     Judge  Field  considered  an  application  for  bail  on  the  same  day  as  this committal.   He declined bail as already noted.   A ruling as to bail by a court of competent jurisdiction may not be called into question on an application for a writ of habeas corpus.6

Warrant issued on 21 April 2010

[21]     Judge  Recordon  issued  a  warrant  under  s  171  in  the  same  form  as  the previous  warrant  which  purported  to  authorise the detention  of the appellant  in custody pending his trial.   However, this related to an information with a CRN ending 6180 which was one of the two informations in respect of which Judge Wilson had granted bail on 17 February 2010.

[22]     For present purposes, we put this warrant to one side.

Warrant issued on 24 June 2010

[23]     Judge Kellar issued a warrant of commitment in respect of an information with a CRN ending 9019 authorising the appellant’s detention in custody pending his trial.   This warrant was in the same form as the previous warrants but was issued under s 184T of the Summary Proceedings Act which, by then, was applicable by virtue of the Summary Proceedings Amendment Act (No 2) 2008.

Conclusions

[24]     The substantive provision in applications of this kind is s 14 of the Habeas

Corpus Act 2001 which relevantly provides:

14       Determination of applications

(1)       If the defendant fails to establish that the detention of the detained person is lawful, the High Court must grant as a matter of right a writ of habeas corpus ordering the release of the detained person from detention.

6      Habeas Corpus Act 2001, s 14(2)(b).

(2)       A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—

(a)       a  conviction  of  an  offence  by  a  court  of  competent jurisdiction, the Court Martial of New Zealand established under section 8 of the Court Martial Act 2007, or a disciplinary officer acting under Part 5 of the Armed Forces Discipline Act 1971; or

(b)      a ruling as to bail by a court of competent jurisdiction. (3)  A Judge must determine an application by—

(a)       refusing the application for the issue of the writ; or

(b)issuing the writ ordering the release from detention of the detained person.

…

[25]     We accept Ms Longdill’s submission that the relevant date to consider an application for habeas corpus is at the date of hearing of the application.  Irrespective of whether there may have been some prior deficiency in the lawfulness of the applicant’s detention, if he or she is lawfully detained at the date of hearing there is no basis upon which the application may be granted.7

[26]     We have some reservations about Dobson J’s conclusion that the absence of the warrant required by s 44(1) of the Bail Act at the time of the hearing before Winkelmann  J  was  a  mere  matter  of  form.    We  accept  that,  as  a  matter  of practicality, it is inevitable there will be some delay between the pronouncement of the Court’s decision and the preparation and execution of the warrant, but the statute should ordinarily be complied with as soon as practicable and preferably before the prisoner leaves the courthouse.

[27]     Nevertheless we are satisfied that the deficiencies just discussed have long since been overtaken by the warrants subsequently issued in the District Court.

7      Tranter v Attorney-General HC Christchurch CIV-2005-409-2464, 4 November 2008; aff’d

Tranter v R CA264/05, 15 December 2005.

[28]     In particular, we are satisfied that at the date of hearing of the application in the High Court and at the date of the hearing of the appeal, the appellant’s detention in custody was lawful on the basis of the warrants issued by the Justices of the Peace on 18 August 2009 and the warrant issued on 24 June 2010 by Judge Kellar both of which authorise the appellant’s detention until the appellant’s trial in November.  His detention may also be authorised by other warrants but it is sufficient to rest our decision on the two warrants identified.

[29]     We acknowledge  that  those  warrants  do  not  necessarily cover  all  of  the informations  which  have  given  rise  to  the  current  indictment.    But  we  accept Ms Longdill’s submission that it is sufficient if the appellant’s detention in custody is authorised by a valid warrant in respect of any one of the informations at the time of the hearing of the application.

[30]     The warrants we have identified are valid on their face and we are entitled to treat them, prima facie, as demonstrating a fresh exercise of judicial authority at the time they were issued.  As this Court has made clear in R v Manuel,8 the production of apparently regular warrants will not always be a decisive answer to a habeas corpus application.  However, this Court went on to say that:9

… it will be a rare case, we think, where the habeas corpus procedures will permit the Court to inquire into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants.   This is particularly  likely  to  be  the  case  where  the  decisionmaker  is  not  the detaining party.

[31]     There  is  nothing  before  us  to  suggest  that  there  is  any  justification  to challenge the issue of the warrants relied upon on administrative law grounds or otherwise.   No such material has been placed before us by the appellant.  Even if there had been such material, we do not consider, in the current context, it would be appropriate to institute any such inquiry.  Importantly, it is clear from the successive applications  made  for  bail  after  29  May  2009  that  the  District  Court  has independently exercised its discretion afresh in relation to the appellant’s continuing detention in custody.

8      R v Manuel [2005]1 NZLR 161.

9 At [49].

Result

[32]     It was for these reasons that we dismissed the appeal.

Solicitors:

Crown Solicitor, Auckland, for Respondent