Misiuk v Police HC Auckland CRI 2011-404-009

[2011] NZHC 110

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2011-404-009

PAWEL MISIUK

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 February 2011

Appearances: P Misiuk in person

N H Malarao for respondent

Judgment:      2 February 2011

Reasons:        3 February 2011

JUDGMENT OF WHITE J

Solicitors:      Crown Solicitors, PO Box 2213, Auckland 1140

Copy to:       P M Musiuk, C/- Mt Eden Prison, Private Bag 92 616 Symonds Street, Auckland 1150

MISIUK V POLICE HC AK CRI 2011-404-009 2 February 2011

[1]      Mr Misiuk purported to lodge an “appeal” to the High Court against what he claimed to have been “decisions” made by Judge R Wade in the Auckland District Court on 23 December 2010 in the course of a list court when Mr Misiuk was remanded in custody to 4 February 2011 on a charge of escaping from custody.

[2]      The “decisions” challenged on appeal by Mr Misiuk were alleged omissions to:

(a)       deal with an application for bail;

(b)direct the issue of witness summonses for the jury trial on the charge of escaping from custody;

(c)       requiring the Crown to provide further disclosure of information prior to the trial; and

(d)      provide  an  accurate  and  complete  transcript  of  the  “hearing”  on

23 December 2010.

[3]      In the course of hearing from Mr Misiuk in support of his “appeal” I referred him to the written submissions for the Crown that this Court had no jurisdiction to hear the appeal because, as he had elected trial by jury in the District Court on the charge of escaping from custody, any appeal would need to be to the Court of Appeal and not to the High Court and because in any event Judge Wade had made no “decisions” susceptible of appeal.   Mr Misiuk was unable to refer to any basis on which the Court had jurisdiction to consider his “appeal”.

[4]      After hearing further from Mr Misiuk in respect of the four alleged omissions on the part of the District Court Judge and Mr Malarao for the Crown in response, I indicated at the conclusion of the hearing that the appeal would be dismissed for lack of jurisdiction and that I would issue a judgment recording my decision and the current position in respect of the four alleged omissions.

[5]      The reasons why this Court has no jurisdiction are set out in the following submissions for the Crown which I adopt:

2.1The appellant has appealed under s 115 of the Summary Proceedings Act, which provides for an appeal to the High Court.   However, given the appellant’s election to be tried by a jury, s 115 does not apply to these proceedings.   The appellant’s right of appeal, if any, is to the Court of Appeal, not the High Court.

2.2      On 10 November 2010, the appellant elected a trial by jury under s

66 of the Summary Proceedings Act.   Section 66(5) of this Act states:

(5)      Where a defendant who is charged with a summary offence elects   under   this   section  to   be  tried   by  a  jury,   the proceedings  shall  continue  as  if  the  offence  were  an indictable offence not punishable summarily, and, if he is committed for trial or for sentence, he may be dealt with accordingly.

2.3      In a corresponding provision, s 28A(1)(a) of the District Courts Act

1947 provides that Part 2A of that Act shall apply to “any offence for

which the accused elects under s 66 of the Summary Proceedings Act 1957 to be tried by a jury”.    These proceedings are therefore governed by Part 2A of the District Courts Act.

2.4Under s 28D, where any person is committed to a District Court for trial, the provisions of parts 12 and 13 of the Crimes Act 1961 apply (so far as they are applicable and with the necessary modifications) until the matter is finally disposed of.  The appellant was committed for trial at the hearing on 23 December 2010.  The appellant’s rights of appeal, therefore, are governed by the Crimes Act, not the Summary Proceedings Act.

2.5Part  13  of the  Crimes Act  provides  for  appeals  to the  Court  of Appeal, and in rare cases, the Supreme Court.   It does not allow appeals to the High Court. For this reason, this court has no jurisdiction to hear the appellant’s appeal.  The respondent notes that in Brown v Police [2009] BCL 617 (HC), ... Allan J reached this same conclusion on broadly similar facts.

2.6For  completeness,  none  of  the  grounds  stated  in  s  379A of  the Crimes Act,  which  sets  out  the  circumstances  in  which  pre-trial appeals may be made, would appear to allow an appeal on the grounds stated.

[6]      I also agree with the Crown that the alleged omissions provide no basis for an appeal: cf s 115 of the Summary Proceedings Act 1957, Black v Fulcher, Brown v Police, Kinnaird v Ministry of Transport and Misiuk v Superintendent of a Penal

Institution.[1]

[1] Black v Fulcher [1988] 1 NZLR 417 (CA) at 420, Brown v Police [2009] BLC 617 (HC), Kinnaird v

[7]      I now record the current position in relation to the four alleged omissions referred to by Mr Misiuk.

Bail

[8]      Mr Misiuk is currently in custody awaiting trial in the District Court at

Auckland on the following charges:

(a)       escaping from custody, for which there is a first call on 15 March

2011;

(b)12 charges of burglary, theft, threatening to kill, and nine breaches of a protection order which are due to be heard on 7 February 2011.

[9]      Mr Misiuk made an application for bail in the Waitakere District Court on

24 December 2010 which was transferred to the Auckland District Court.   There were hearings in that Court last week and on Friday 28 January 2011 Mr Misiuk indicated that he was proposing to obtain an address for electronic monitored bail. The Police are currently checking that address, but propose to oppose bail if the trial proceeds on 7 February 2011.

[10]     Mr Misiuk has previously made other applications for bail and also habeas corpus.  These are summarised in the decision of the Court of Appeal delivered on

15 October 2010 with reasons delivered on 20 October 2010: Misiuk v The Chief Executive of the Department of Corrections.[2]   An application for leave to appeal to the Supreme Court was dismissed on 16 November 2010: Misiuk v The Chief Executive of the Department of Corrections.[3]

[2] Misiuk v The Chief Executive of the Department of Corrections [2010] NZCA 480.

[3] Misiuk v The Chief Executive of the Department of Corrections [2010] NZSC 140.

[11]     No  question  of  bail  arose  for  determination  before  Judge  Wade  on

23 December 2010.  There is at present no appeal to this Court against any refusal to grant bail in the District Court.

[12]     In terms of s 20 of the Summary Proceedings Act 1957 Mr Misiuk may obtain from the Registrar of the District Court a summons in the prescribed form calling on any person to appear as a witness “at the hearing”.  Clearly there must be a  date  for  the  hearing  before  a  summons  may  be  issued  to  a  witness.    While Mr Misiuk has been committed for trial on the escaping from custody charge with a first call scheduled for 15 March 2011, there is no trial date yet.

[13]     The issue of witness summonses is therefore premature.   Mr Misiuk may follow this matter up later.   There was therefore no question for determination by Judge Wade on 23 December 2010.

Further disclosure

[14]    By letter dated 22 October 2010 Mr Misiuk wrote to Constable Donna Hemmingway of the New Zealand Police requesting disclosure of certain further information which he considered relevant to his defence of the charge of escaping from custody.   Constable Hemmingway replied to Mr Misiuk by letter dated 24

November 2010 providing him with certain further relevant information and suggesting that he pursue other avenues of inquiry.  Mr Misiuk has the opportunity to follow up the other avenues of inquiry before his trial.

[15]     There was no question in relation to further disclosure for determination by Judge Wade on 23 December 2010.   Mr Misiuk may raise any further disclosure concerns which he may have at the callover in the District Court on 15 March 2011 and subsequently at his trial.

Transcript

[16]     There is a transcript of what is described as “legal discussion taken before Judge Roy Wade” on 23 December 2010.   Mr Misiuk claims that the transcript is inaccurate and incomplete, but as no relevant “decisions” were made by Judge Wade on that date there is no need for any further direction in respect of the transcript.

[17]     As this Court has no jurisdiction or need to determine the matters raised by

Mr Misiuk, his “appeal” is dismissed.

D J White J

Ministry of Transport HC Christchurch M338/82, 14 September 1982 at 5 and Misiuk v
Superintendent of a Penal Institution HC Auckland CIV 2010-404-6625, 7 October 2010 at [19]-[20].