Misiuk v Chief Executive of the Department of Corrections HC Auckland Civ-2011-404-006821

[2011] NZHC 1899

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2011-404-006821

IN THE MATTER OF     Habeas Corpus Act 2011

BETWEEN  PAWEL MARIAN MISIUK Applicant

ANDCHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS & ORS

Respondents

Hearing:         31 October 2011

Appearances: P M Misiuk in Person

F Cuncannon for Respondents

Judgment:      8 November 2011 at 4:30 PM

RESERVED JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 8 November 2011 at 4:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:          Meredith Connell, DX CP24063, Auckland. And to:      P Misiuk.

MISIUK V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS & ORS HC AK CIV-2011-

404-006821 8 November 2011

[1]      Mr Misiuk continues his crusade against the New Zealand criminal justice system.   This is his sixth application for a writ of habeas corpus.  As recently as

10 October 2011, the Supreme Court declined his application for leave to appeal the decision of the Court of Appeal in relation to his fifth habeas corpus application.

[2]      The Supreme Court states in a one paragraph judgment:[1]

[1]       The application for habeas corpus had no prospect of succeeding as the applicant is being held in prison under a warrant of committal issued as a consequence of the imposition of a sentence of imprisonment which he is currently still serving.   The appeal to the Court of Appeal was therefore rightly dismissed and the application for leave to appeal to this Court cannot succeed.    The  arguments  put  forward  by  the  applicant  related  to  the processes of the Court of Appeal and provide no basis for a reconsideration of its decision.  It was well open to the Court to make an award of costs as it did.

[1] Misiuk v Chief Executive of the Department of Corrections [2011] NZSC 122.

[3]      The warrant of commitment to which the Supreme Court refers is dated 18

April 2011 and is signed by Judge C J Field.  It refers to a conviction for burglary entered on 6 April 2011, in respect of which Mr Misiuk was sentenced to four years imprisonment.  Mr Misiuk has calculated that, because of time spent on remand, the four year prison sentence will expire at the end of January or the beginning of February 2013.   On the face of it, Mr Misiuk is lawfully detained and there is therefore no basis for the issue of the writ of habeas corpus.  However, Mr Misiuk has a multitude of complaints about the criminal justice processes which led to the entry of conviction for burglary and the imposition of a four year term of imprisonment.

[4]      When he came into Court, he brought with him from prison a number of informations he had sworn before a Justice of the Peace at the prison.  He asked me to accept the informations for filing in the High Court.   He also asked for my assistance to have the Registrar of the Court witness his signature on one further information he had drafted.   I declined to do so.   I advised him to have the one further information sworn before a Justice of the Peace at the prison and then post them to the Auckland District Court with a request that they be accepted for filing.

One of the prosecutions which Mr Misiuk will attempt to initiate by filing of the

informations is against Judge Field, the Judge who convicted and sentenced him to four  years  imprisonment.     He  alleges  that  Judge  Field  unlawfully  falsified documents.

[5]      Mr Misiuk’s application for a writ of habeas corpus dated 26 October 2011,

states in full:

1.My name is Pawel Marian Misiuk, and I am quasi – political prisoner of corruption, ill-will, incompetence, and femin-nazism, currently held at Mr Eden Corrections Facility private prison, where I am subject to further cruel, tortureous, degrading, and disproportionately severe treatment and overall punishment;

2.      I appear before New Zealand Courts, and other judicial tribunals almost

300 times up to date, and because of this inhumane cruelty I spend almost 3 years in prison custody on 3 occasions being accepted by management without warrant signed by Judge;

3.I claim that New Zealand justice system is dysfunctional, nepothic, and inherently corrupt;

4.I know that I do not have any chance to rely, or involve any human rights in this barbaric British dominium, therefore I am desparate to claim my animal rights as animal instead of human, as it was said by members of the British House of Lords in Huang v Secretary of State for the Home Department [2007] 2 AC167

– quote:

(...) ―Human beings are social animals‖ (...)

– unquote;

5.I was transported in a cage-van like other sisters and brothers animals between my barn (prison) and my butchers (Courts) well over 150 times between December 2006, and April 2011.  I was told by Ms Meg Lamont that I am ―an animal‖ last year when complained no access to

water and toilet for hours awaiting in a holding cell.  I was verbally, and physically assaulted by Dept of Corrections officers when attempted to claim  my  civil,  or  human  rights,  and  openly  demonstrated  my innocence;

6.I know that as animal, I have better chance for humain treatment in New Zealand under Animal Welfare Act, and expect to receive fair trial as English (or rather Piglish language) speaking animal instead of non- citizen human being only;

7.I am sure that if animal welfare activists groups were aware of my situation, I may be provided with their support, and perhaps even public protestations;

8.I am also sure that there are right minded and sensible Judges within the Courts, and I pray to God – Creator of all good Universe we are turning into hell – that my subsequent Habeas Corpus application could reach one of those strong in heart and character, instead of those incompetent, impotent or dispositional toward ―legal fiction‖ called Crown or Regina – an ancient fraud and crime family living between us, and drinking our blood like all aristocratic social vampires.

[6]      There   is   reference   in   the   second   paragraph   to   ―being   accepted   by management without warrant signed by Judge‖.  I am however only able to consider the lawfulness of Mr Misiuk’s detention at the present time and I have been provided with a warrant signed by a Judge on 18 April 2011.  It is still current.  There are no other specific grounds pleaded in the application which relate to the lawfulness of his detention.

[7]      Mr Misiuk filed a second document entitled ―Interlocutory Application for Oral Evidence and s 11 Relief‖ with his application for a writ of habeas corpus.  He states that the need for oral evidence is:

―absolutely essential due to the facts relevant to the case, interests of justice,

and basic fairness to the Applicant who doesn’t have any access to proper

facilities which he applied for formerly on at least 7 occasions since 2009,

but was either ignored or unsuccessful.‖

[8]      Section 11 of the Act provides for interim relief.  It states:

11       Interim orders for release from detention

(1)       The High Court may make an interim order for the release from detention of the detained person pending final determination of the application,  and  may attach  any conditions to the order  that the Court thinks appropriate to the circumstances.

(2)       In the case of a detained person who is charged with an offence to which the Bail Act 2000 applies, the Court must not make an order under this section if the Court is of the opinion that bail would not be granted to that person under that Act.

(3)       If a person has been released from detention under an interim order, the Court may, on the application of the person released or any party to the proceeding or on the Court's own initiative, make an order—

(a)      revoking the interim order; or

(b)      varying or revoking any condition of the interim order or substituting or imposing any other condition.

(4)       If a detained person who is in custody under a conviction is released under an interim order, the time during which the person is released does not count as part of any term of detention under the person's sentence if on a final determination of the application the writ of habeas corpus is refused.

[9]      During the course of the hearing, I asked Mr Misiuk repeatedly to advise me of the nature and scope of the oral evidence he wished to give.  He was unable to do so in a succinct and coherent manner.   He said he had 80 folders of documents relevant to his civil, criminal and immigration circumstances and referred me to a number of documents he took from the one folder he had brought with him from prison.  These included notes of Judge D G Mather on a bail application dated 28

August 2008 and a police opposition to bail form dated 24 April 2009.

[10]     He talked of the unbearable psychological abuse and torture.  He said that his children, his mother and his ex-wife had all been the subject of gross injustice.

[11]     I concluded from what he had told me that Mr Misiuk wanted to challenge the basis of his various convictions.   The summary habeas corpus procedure is however quite unsuited to such challenges.   I advised Mr Misiuk that the proper

procedure to challenge his convictions would be either by way of appeal or judicial review with affidavit evidence.   I am quite unable on an application for a writ of habeas corpus to determine a wide range of disputed facts relating to his convictions. I decline Mr Misiuk’s application for oral evidence.

[12]     Subsequent to receipt of the notice of opposition filed by the Chief Executive of the Department Corrections, Mr Misiuk filed a further interlocutory application for an order for trial before a Judge with a jury and a memorandum.   The stated reason for the application for trial of the habeas corpus application before a Judge and jury included the existence of some sort of ―judicial mafia‖ and the fact that the New Zealand legal system is significantly corrupt and ―act against imperative of equity, equality and justice‖.  There is however no provision in the Habeas Corpus Act for trial by Judge and jury.  The lawfulness of detention is a legal question to be determined by a Judge on the basis of established facts.  Those facts do not have to be established by an applicant such as Mr Misiuk.   The facts justifying detention have to be established by the entity detaining the applicant.  The credibility of an applicant is not an issue in those circumstances.

[13]     Furthermore, given the urgency with which applications for a writ of habeas corpus are required to be heard, it would not be more convenient in terms of s

19B(2) Judicature Act for the application to be heard by a Judge and jury.  I decline

to order a hearing of Mr Misiuk’s application by a Judge and jury.

[14]     In his memorandum, Mr Misiuk, firstly, asserted that the notice of opposition incorrectly limits the respondents to the Chief Executive of the Department of Corrections.  Mr Misiuk states that the Attorney-General, the New Zealand Parole Board and the Minister Justice should also be respondents.

[15]     Mr Misiuk then asserts that any costs sought by the respondent should be sought from the Chief High Court Judge, Winkelmann J.

[16]     He concludes by stating that his detention continues to be arbitrary, cruel and inhuman and in breach of ss 21 and 22 of the Bill of Rights Act, the UN Convention

against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the Optional Protocol to the International Covenant on Civil and Political Rights.

[17]     I am satisfied however that Mr Misiuk’s detention is lawful.  His application for writ of habeas corpus is dismissed. The question of interim relief under s 11 does not arise.

[18]     Costs   of   $500   are   awarded   to   the   respondent   on   the   basis   that, notwithstanding advice that he should pursue his grievances in a manner more suited to   their   resolution,   Mr   Misiuk   continues   to   make   completely   unwarranted applications for a writ of habeas corpus.

……………………………..

Woolford J