Misiuk v The Queen

[2010] NZCA 142

IN THE COURT OF APPEAL OF NEW ZEALAND

CA65/2010
[2010] NZCA 142

BETWEENPAWEL MARIAN MISIUK

Appellant

ANDTHE QUEEN

Respondent

Hearing:20 April 2010

Court:Glazebrook, Venning and Lang JJ

Counsel:Appellant in Person

J M Jelas for Respondent

Judgment:27 April 2010 at 11.15 am

JUDGMENT OF THE COURT

The appeal is dismissed for lack of jurisdiction.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1]        The appellant seeks to appeal from a decision of Courtney J in the High Court.  Courtney J dismissed an appeal from an earlier decision of Judge Gittos in the District Court refusing the appellant bail with electronic monitoring.

[2]        The appellant faces a number of charges following the breakdown of the relationship with his wife.  The alleged offending covers a number of years.  He faces five counts of breaching a protection order, one count of burglary of his wife’s home, one of theft, and one count of threatening to kill her, all said to have occurred in April and May 2009.  In addition, the appellant faces a later count of breach of a protection order in August 2009 while in custody.  The appellant also faces a number of earlier charges that date from 2007 and 2008, including three further counts of breaches of a protection order and one each of intimidation and disorderly behaviour.

The relevant bail history

[3]        Relevantly for present purposes, the appellant was first denied bail on 28 April 2009.  The appellant had been granted bail on 24 April when he first appeared on the April 2009 charges.  The police had not opposed bail that day as they understood the appellant was to be deported.  When they learnt that was not to be the case they sought to have the grant of bail reviewed on the ground of a significant change of circumstances.  Judge de Jong reviewed the issue of bail afresh and declined bail.

[4]        The appellant then pursued an application for habeas corpus in this Court.  That application was adjourned to allow further information to be obtained.  When the further charges arising from May 2009 were laid, the habeas corpus application was discontinued.  The appellant then made a fresh bail application in the District Court.  On 20 May 2009 he was granted bail by Judge David Harvey.  The police appealed.  On 29 May 2009 Winkelmann J allowed the appeal and remanded the appellant in custody.  Winkelmann J concluded the District Court Judge could not reasonably have been satisfied that the risk of re-offending could be met by bail conditions. 

[5]        The appellant then applied for electronically monitored bail.  That application was heard by Judge Gittos in the District Court on 2 September 2009.  Judge Gittos declined the application, taking the view that the overriding consideration must be the safety of the complainant.  Judge Gittos was not satisfied that the risk of further offending could be satisfactorily addressed by electronically monitored bail. 

[6]        The appellant then applied to the High Court for bail.  Courtney J treated the application as an appeal from the decision of Judge Gittos.  On 21 December 2009 Courtney J dismissed the appeal.  She held the District Court Judge did not make any errors in his approach. 

[7]        The appellant now seeks to appeal from Courtney J’s decision. 

Jurisdiction

[8]        The first issue is whether there is jurisdiction for the appeal.  The Crown submits this Court has no jurisdiction to consider an appeal from the High Court dismissing an appeal from the District Court’s refusal to grant bail.  The appellant submitted that in the interests of justice this Court should have, or should assume, jurisdiction. 

[9]        Unlike the High Court, this Court does not have an inherent jurisdiction.  There is no right of appeal from the High Court to this Court except pursuant to a statutory provision giving that right.

[10]       Section 66 of the Bail Act 2000 provides for appeals to this Court from bail decisions of the High Court.  It reads:

66          Appeal from decision of High Court relating to bail

(1)         Subject to subsection (4), this section applies to any decision made (whether under any enactment or rule of law or otherwise) by a High Court Judge to—

(a)         grant or refuse bail to a defendant; or

(b)impose or substitute or revoke or vary any condition of bail; or

(c)refuse to impose any condition of bail or any particular condition of bail; or

(d)         refuse to vary or revoke any condition of bail.

(2)Either the prosecutor or the defendant may appeal to the Court of Appeal against any decision to which this section applies.

(3)For the purposes of an appeal under this section, the failure of a High Court Judge to impose any condition of bail, or any particular condition of bail, on any occasion on which the condition could lawfully have been imposed is deemed to be a refusal to impose the condition.

(4)Nothing in this section applies in respect of any decision made by a High Court Judge if that decision was made on appeal from any decision of a District Court.

[11]       Section 66(1) confirms that the right of appeal to this Court from a decision of the High Court relating to bail (whether under statute or the inherent jurisdiction of the High Court) is subject to subs (4).  The effect of s 66(4) is that the right of appeal under s 66(1) does not apply if the decision in the High Court was made on appeal from a decision of the District Court. 

[12]       The Bail Act does not provide for a second appeal on the issue of bail.  An original decision of the District Court can be appealed to the High Court:  s 41.  An original decision of the High Court can be appealed to this Court:  s 66.  The intention of Parliament is clear.  There is only one right of appeal in bail matters.  A Full Court of the High Court in R v Lee[1] confirmed that Parliament intended there would only be one right of appeal in relation to bail.

[1]      R v Lee [2001] 3 NZLR 858 (HC) at [23].

[13]       In summary, there is no right of appeal under the Bail Act to this Court from a decision in the High Court on appeal from the District Court.  The appellant was not able to point to any other statutory provision or enactment that provided jurisdiction.  For completeness we note that the general right of appeal to this Court under s 66 of the Judicature Act 1908 does not apply to appeals in criminal matters:  Mafart v TVNZ.[2]

[2]      Mafart v TVNZ [2006] NZSC 33, [2006] 3 NZLR 18.

[14]       To avoid the practical effect of that conclusion, the appellant suggested that the hearing before Courtney J was not an appeal, but rather was a fresh application to the High Court for bail from which an appeal would lie.  The originating document filed with the High Court is consistent with that submission.  It was styled as an application, despite the fact it referred to Judge Gittos’ decision and relied on the affidavits filed in the District Court.  But whatever the document was called, there was no jurisdiction for a fresh application for bail to be made in the High Court.  Applications for bail must be made to the Court seized of the criminal proceedings:  R v Lee.[3]  The appellant has been committed to the District Court, not the High Court, in relation to the charges he faces.  His trial will not be before the High Court.  There was no basis for the appellant to pursue a fresh application for bail in the High Court.  Courtney J was correct to treat the “application” before her as an appeal.  The only other option available to the Judge was to dismiss it for want of jurisdiction.

[3] At [14].

[15]       The appellant argued that to deny him a further bail hearing would be a denial of his rights.  But although there is no right to a second appeal, the appellant may make a fresh application for bail in the District Court if he can establish a change of circumstances.  The ability to bring a fresh application on that basis is consistent with s 24(b) of the New Zealand Bill of Rights Act 1990. 

Result

[16]       As there is no jurisdiction for the appeal to this Court it must be dismissed.  To avoid doubt, we confirm we do not require the Crown to file an updated list of outstanding charges.

Other issues

[17]       While the jurisdiction issue disposes of the appeal, for the sake of completeness we add that, given the information before the Court, even taking account of the matters the appellant drew our attention to, the appellant fails to satisfy this Court that Courtney J’s refusal of bail was contrary to principle.  Similarly, the appellant fails to satisfy this Court that the Judge failed to take into account relevant matters or took into account irrelevant matters.  Nor can it be said the Judge’s decision to dismiss the appeal and decline bail was plainly wrong.  So, even if there was jurisdiction, we would have dismissed the appeal. 

Solicitors:

Crown Law Office, Wellington for Respondent