Misiuk v The Queen - [2011] NZCA 323

IN THE COURT OF APPEAL OF NEW ZEALAND

CA397/2011
[2011] NZCA 323

BETWEEN PAWEL MARIAN MISIUK
Applicant

AND THE QUEEN
Respondent

Counsel: M J Kidd for Applicant
C A Brook for Respondent

Judgment: 15 July 2011 at 11.00 am

JUDGMENT OF STEVENS J

The application for bail is dismissed.

____________________________________________________________________

REASONS

Introduction

The applicant Pawel Marian Misiuk was convicted following a trial before Judge Field in the District Court on 6 April 2011 on ten out of twelve charges including burglary, theft, threatening to kill and contravening a protection order.[1] He was remanded in custody pending sentence. On 18 April 2011 Mr Misiuk entered a guilty plea to a further charge of escaping from custody, relating to events in October 2010. On the same day he was sentenced by Judge Field on all the charges to a total of four years and one month imprisonment. Mr Misiuk has appealed against his conviction and sentence.
[1] R v Misiuk DC Auckland CRI-2010-0004-4873, 15 April 2011 (transcript).
So far as the conviction appeal is concerned, the notice of appeal filed by Mr Misiuk states the grounds are “to be advised”. An affidavit filed by the applicant through his counsel Dr Kidd, suggests that, in relation to the charge of burglary and possibly other charges, a ground of appeal will involve a lack of forensic evidence linking him to the crimes. A further potential ground is that his defence to these charges was prejudiced by an inability to retain a trial lawyer. On the sentence appeal, Mr Misiuk asserts numerous grounds, including that the District Court Judge considered case law involving actual violence when there was none; that there was an absence of aggravating features such as drug or alcohol dependency; and that on the burglary charge the sentence was far too severe.
Mr Misiuk first applied for bail to the High Court. That application came before Lang J on 17 June 2011 but was struck out for want of jurisdiction.[2] Mr Misiuk also filed an application for habeas corpus in the High Court. That application was dismissed by Lang J on 22 June 2011.[3] An appeal to this Court, the fourth such application for habeas corpus made by Mr Misiuk since he was detained in May 2009, was dismissed on 11 July 2011.[4]
[2] See minute of Lang J dated 17 June 2011.
[3]Misiuk v Chief Executive of the Department of Corrections HC Auckland CRI-2011-404-50, 22 June 2011.
[4]Misiuk v Chief Executive of the Department of Corrections [2011] NZCA 318.
On 7 July 2011, this Court accepted that a notice of appeal against the High Court refusal to grant bail should be treated as an application for bail pending the determination of his appeal under s 70 of the Bail Act 2000.[5]
[5] See minute of Glazebrook J dated 7 July 2011.
Despite the fact that Mr Misiuk is represented by counsel, Mr Misiuk has continued to file documents personally with the Registry.[6] These include a memorandum to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Misiuk v The Queen

Details

AGLC: Misiuk v The Queen [2011] NZCA 323
Case: [2011] NZCA 323
Decision Date: 15 July 2011

CaseChat Overview and Summary

Pawel Marian Misiuk, who was convicted on multiple charges including burglary and theft, sought bail pending the determination of his appeal against his conviction and sentence. The Crown opposed the bail application, arguing that the appeal grounds were not compelling enough to warrant bail. The applicant argued that exceptional circumstances, such as the delay in hearing his appeal, his alleged mistreatment in prison, and difficulties in obtaining legal representation, warranted the grant of bail.

The Court considered the applicant's arguments and the Crown's opposition. The Court noted that it was not necessary to embark on an extensive analysis of the merits of the appeal when determining an application for bail. However, the Court also held that it is almost impossible to gauge the prospects of success of the conviction appeal on the material presently available. In terms of the sentence appeal, the Court found that there was simply insufficient information available at that stage to determine whether the sentence of four years and one month imprisonment was manifestly excessive. Therefore, the Court was not satisfied on the balance of probabilities that it would be in the interests of justice to grant bail.

The Court also noted that the applicant had continually challenged his detention by way of applications for bail, applications for writs of habeas corpus and appeals against refusals of those applications. His status had therefore been reviewed in the District Court, High Court and the Court of Appeal on a number of occasions. The Court held that any issue of alleged mistreatment in prison could not be resolved in the present application.

Ultimately, the Court found that none of the factors raised by the applicant were sufficiently compelling to establish that bail was in the interests of justice. The Court dismissed the applicant's application for bail.

Orders