Misiuk v Superintendent of a Penal Institution HC Auckland CIV 2010-404-6625

[2010] NZHC 1844

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2010-404-6625

UNDER  the Habeas Corpus Act 2001

BETWEEN  PAWEL MARIAN MISIUK Applicant

ANDSUPERINTENDENT OF A PENAL INSTITUTION

Respondent

Hearing:         7 October 2010

Counsel:         Applicant in person

A Longdill for respondent

Judgment:      8 October 2010

RESERVED JUDGMENT OF DOBSON J

Solicitors:

P M Misiuk, C/- Auckland Central Remand Prison, Private Bag 92625, Auckland

Crown Solicitor, PO Box 2213 Auckland for respondent ([email protected])

MISIUK V SUPERINTENDENT OF A PENAL INSTITUTION  HC AK CIV-2010-404-6625  8 October 2010

[1]      On 5 October 2010, Mr Misiuk filed an application for a writ of habeas corpus.   It was dealt with by me on 7 October 2010, immediately after a further application  pursued  on  Mr Misiuk’s  behalf  for  bail  which,  if  this  Court  had jurisdiction to deal with, would in any event have been declined.

[2]      Mr Misiuk  filed  an  earlier  application  for  a  writ  of  habeas  corpus  on

21 September  2010.    On  that  occasion,  he  was  represented  by  Mr Rogers  and Ms Abernethy  at  a  hearing  on  23  September  2010.     That  application  was unsuccessful.

[3]      Mr Rogers and Ms Abernethy remained in Court after determination of the bail application, but Mr Misiuk presented argument on his own behalf on the present application for a writ of habeas corpus.

[4]      The ground now relied upon is that the only basis for his current detention was a warrant of commitment signed on 6 September 2010 by Judge Tremewan in the Waitakere District Court.   Mr Misiuk argued that that warrant was unlawful because the decision that he be remanded in custody on the requisite charge had the effect of reversing an earlier grant of bail on that charge which had been ordered on certain conditions on 17 February 2010 by Judge Wilson QC.

[5]      Ms Longdill’s initial rejoinder to this challenge is that unlawfulness for the purpose of an application for a writ of habeas corpus cannot be made out by going behind the terms of a warrant, the lawfulness of which is to be accepted on its face.

[6]      A further point is that Mr Misiuk is lawfully detained pursuant to a number of other warrants of commitment.  When I raised this with Mr Misiuk, he denied having been served with a copy of the warrant of commitment that I executed as a consequence of my decision on 23 September 2010, in respect of the judgment of this Court of 29 May 2009.   His denial extended to receipt of any notice of the outcome of the May 2009 appeal.   That judgment had allowed a Police appeal against a District Court decision granting Mr Misiuk bail, but the warrant that ought to have been signed by a Judge reflecting that outcome had not previously been

completed.  Mr Misiuk also denied being provided with a copy of my judgment of

23 September 2010.

[7]      Although Mr Rogers was equivocal as to whether he had received a copy of my 23 September 2010 judgment, since the hearing on the present application I have been able to check the Registry records which confirm that the decision was sent to Mr Rogers in the usual way immediately on its release.

[8]      The   Registry   staff   have   subsequently   advised   me   that   a   certificate constituting a copy of the notice of the result of the successful Police appeal in May

2009 was presented to Mr Misiuk in the cells at the High Court on the morning of

23 September 2010, before argument of the application dealt with on that day.  The Registry staff advise that Mr Misiuk refused to accept service of that certificate.  It was in a form that would fulfil the requirement under s 44(2) of the Bail Act 2000 to convey to him the result of the appeal, once the warrant required by s 44(1) of that Act had been signed by a Judge.

[9]      In addition to that, the Registry file reveals that a copy of my judgment of

23 September 2010, plus a copy of the Notice of Result of Appeal in relation to the May 2009  appeal,  were  sealed  in  an  envelope  and  attached  to  the  Warrant  for Detention  which  was  sent  to  the  Prison  Superintendent  via  First  Security  on

23 September  2010,  to  be  held  on  Mr Misiuk’s  file.    I understand  that  records directed to the manager of the prison in that way are to be made available to the prisoner to whom they relate on request by that prisoner.

[10]     These details of Mr Misiuk’s access to records of the basis for his detention confirm the view I conveyed to Mr Misiuk at the end of the hearing that I was satisfied his continued detention was lawful and therefore he was not entitled to the issue of a writ of habeas corpus.

[11]     This  analysis  renders  it  unnecessary  to  resolve  whether  Mr Misiuk  can challenge the lawfulness of the 6 September 2010 warrant of commitment.   He is lawfully detained irrespective of that warrant.

[12]     At the end of numerous exchanges with Mr Misiuk, he sought confirmation that the proceedings had been recorded and made request for a copy of that record. At the time his request was made, I was unaware that any record was being taken of the matters that had been traversed on the bail application, and Mr Misiuk’s current application for a writ of habeas corpus.   However, the Registrar indicated that an electronic recording using the FTR system was being taken.

[13]     On receiving that confirmation, Mr Misiuk repeated his request for a written transcript of everything that had been said in Court.  I indicated that I would consider his request, and make a decision on it in due course.

[14]     The first aspect of what occurred at “the hearing” was the further application for  bail  pursued  on  Mr Misiuk’s  behalf,  and  therefore  constituted  a  criminal proceeding.  The second aspect of the hearing related to Mr Misiuk’s application for a writ of habeas corpus which constitutes a civil proceeding.

[15]     Accordingly, Mr Misiuk’s request is to be considered in respect of that first aspect under the Criminal Proceedings (Access to Court Documents) Rules 2009 (the criminal rules), and as to the second aspect, under Part 3, Subpart 2 of the High Court Rules in the form introduced at the same time as the criminal rules.

[16]     In  both  contexts,  the  definition  of  “document”  extends  to  “...records  in electronic form...” which accurately describes the form of recording made of what was said.

[17]     For present purposes, I assume that the electronic record will constitute a “...document relating to the criminal proceeding...” and on that basis would be within the documents to which a defendant has a right of access under r 7(1)(a) of the criminal rules.  The point is not free from doubt as the Court file in relation to the charges Mr Misiuk faces is not maintained in this Court, but will be in the Registry of the appropriate District Court where he faces trial.   The discrete issue of bail, which was attempted to be pursued in this Court, certainly does not bear the same relation to the Court file that will be maintained in the District Court, as all the other matters in relation to the substantive charges would.

[18]     Putting that doubt aside, the right under r 7(1) of the criminal rules is subject to a reservation in r 7(2) that a record of Court proceedings in electronic form may be copied only with the permission of the Court.

[19]     In the absence of the request made informally by Mr Misiuk at the end of the hearing, there would be no reason to direct the production of a transcript of what had been said from the recording in electronic form.  The resources of the Ministry to undertake such transcription are limited and I take considerations of the best use of that limited resource to be among the reasons for the reservation specified in r 7(2). Obviously, any widespread practice of producing transcripts of electronic recordings in response to requests in circumstances such as Mr Misiuk has made would create substantial resourcing difficulties for the Ministry.

[20]     Given that concern, and given also the extent to which the Minute I have produced in relation to the bail application traverses the relevant points that were raised, I am not prepared to grant permission under r 7(2) to enable production of a transcript in a form that could be provided to Mr Misiuk.

[21]     Turning  to  the  part  of  the  hearing  that  comprised  a  civil  proceeding, substantially similar considerations apply.   The right in r 3.8(1) of the High Court Rules to “search and inspect the Court file or any document relating to the proceeding” contemplates the existence of something readily able to be inspected. The exception in r 3.8(2) providing that a record of Court proceedings in electronic form may be copied only with the permission of the Court, is likely to have been introduced for similar reasons to the parallel provision in the criminal rules.  Further, it reflects the inappropriateness of granting a “right” to “search” something that is only in electronic form.

[22]     The same resourcing considerations apply and I am satisfied on this aspect that they count against requiring the Ministry’s National Transcription Service to allocate resource to producing a “searchable” form of transcript of the exchanges in relation to the habeas corpus argument.

[23]     For completeness, I acknowledge that Mr Misiuk made passing reference at one point to entries in the “Crown Book”, apparently contemplating that a transcript of what had been said during the hearing would be entered in such a Crown Book, or possibly asserting an obligation that that should occur.

[24]     The scope of the Court’s obligations in relation to a Crown Book is set out in s 353 of the Crimes Act 1961.   I am unfamiliar with the Registry’s practice in relation to the maintenance of a Crown Book, but from the terms of the section treat it as requiring a record of proceedings at trial, but not extending to any pre-trial or other ancillary aspects of criminal proceedings.  I do not treat the provisions of s 353 as  adding anything to  Mr Misiuk’s  request  that  a  transcript  be  produced  in  the present circumstances.

[25]     Accordingly, Mr Misiuk’s request for a transcript of the hearing is declined.

Dobson J