Vaisevuraki v Chief Executive of the Department of Corrections

[2020] NZHC 801

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2020-485-163

[2020] NZHC 801

IN THE MATTER

of an application pursuant to the Habeas Corpus Act 2001

BETWEEN

SAMUEL VAISEVURAKI

Plaintiff

AND

THE CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS

Defendant

Hearing:	23 April 2020
Counsel:	C G Tuck and T D A Harré for Plaintiff J A Herring for Defendant
Judgment:	23 April 2020

JUDGMENT OF ELLIS J

[1]    Mr Vaisevuraki is presently in jail in New Zealand, awaiting trial on serious drugs charges. He was extradited from Australia (his home) last year.

[2]    Mr Vaisevuraki now applies for writ of habeas corpus on the basis that the initial warrant for his arrest signed on 10 April 2019 by Judge C M Ryan in the District Court was unlawful. The warrant was purportedly issued pursuant to s 34 of the Criminal Procedure Act 2011 (CPA). But because no prior summons had been issued, Mr Vaisevuraki says there was no jurisdiction under s 34.

[3]Before turning to consider the lawfulness of Mr Vaisevuraki’s detention, it is

necessary to outline the events leading, and subsequent, to his arrest.

VAISEVURAKI v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 801 [23
April 2020]

Background

[4]    As a result of a 2018 investigation, codenamed Operation Nova, Police formed the view that Mr Vuisevuraki had been involved in serious Class A drug offending. Police resolved to, and subsequently did, charge him with:

(a)four     charges     of     importing     a     class     A     controlled     drug (methamphetamine);

(b)two charges of conspiracy to supply a class A controlled drug (methamphetamine); and

(c)one charge of supplying a class A controlled drug (methamphetamine).

Arrest warrant issued by Judge C M Ryan

[5]    On 10 April 2019 Detective Sergeant Espinosa applied to the District Court for an arrest warrant. In his affidavit in support of the application, he said:

It is not possible to serve Samuel with a summons … the service of summons would require a mutual assistance request under the Mutual Assistance in Criminal Matters Act 1992; and if the summonses were to be served it would likely result in Samuel fleeing to a country that has no extradition arrangements with New Zealand.

[6]    Later in his affidavit Detective Sergeant Espinosa stated that he asked that “a warrant to arrest for Samuel be issued under section 34 of the Criminal Procedure Act”.

[7]I interrupt the narrative at this point to note that s 34 provides:

34 Warrant may be issued if summons cannot be served

(1)This section applies if a charging document has been filed and a summons has been issued under section 28, 29, or 33 that has not been served on the defendant.

(2)If the summons relates to a category 1 offence, a District Court Judge may issue a warrant to arrest the defendant and bring him or her before the District Court if the Judge is satisfied that reasonable efforts have been made to serve the summons on the defendant.

(3)If the summons relates to a category 2, 3, or 4 offence, a judicial officer or Registrar may issue a warrant to arrest the defendant and bring him or her before the District Court if the judicial officer or Registrar is satisfied that reasonable efforts have been made to serve the summons on the defendant.

[8]    It is not in dispute that Mr Vaisevuraki had not previously been served with a summons, or that no efforts had been made to serve him with one, for the reasons given by Detective Sergeant Espinosa.

[9]Judge C M Ryan signed and issued a warrant for Mr Vaisevuraki’s arrest on

10 June. The warrant states that it was issued pursuant to s 34.1

Subsequent events

[10]   Mr Vaisevuraki was arrested in Sydney on 12 April 2019 on the basis of a provisional arrest warrant issued by Magistrate Kennedy, dated 11 April 2019. I assume (but in the time available cannot be sure) that was pursuant to the expedited extradition procedures in place between Australia and New Zealand and that it was based on Judge Ryan’s warrant.

[11]   On 13 April 2019, Mr Vaisevuraki attended the Parramatta local court and was remanded in custody.

[12]   On 5 June 2019, he was taken from Parklea prison by Detective Paul King, and Detective Sergeant Damien Espinosa of the New Zealand Police and escorted to Sydney International Airport. He departed Sydney for Auckland on an Air New Zealand flight at 7.30 pm that evening, landing just after midnight the next day.

[13]   Detective King then gave Mr Vaisevuraki his rights and arrested him, pursuant to Judge Ryan’s warrant.

[14]   On 6 June Mr Vaisevuraki made his first appearance in the Auckland District Court. He was remanded in custody by Judge Thomas who adjourned the matter until the next day. On 7 June, Mr Vaisevuraki duly appeared again in the Auckland District

1      Rule 3.4 of the Criminal Procedure Rules 2012 requires that an arrest warrant specify the section of the enactment under which it is issued.

Court. Bail was declined by Judge Sharp. He was remanded in custody until 3 July 2019.

[15]   From that time onwards, Mr Vaisevuraki has made many appearances in both the High Court and the District Court. There have been multiple warrants issued for his continued detention issued by the Courts—most recently on 21 April 2020 by Judge B Gibson in the Auckland District Court.

The application for habeas corpus

[16]   There is, of course, no issue that Mr Vaisevuraki is presently detained. The only question is the lawfulness of that detention. The onus is on the Chief Executive to satisfy the Court of that.2

[17]   It is not disputed that s 34 was not the relevant authorisation for the arrest warrant here. As I have said, no prior attempts—reasonable or otherwise—had been made to issue or serve Mr Vaisevuraki with a summons, for good reason. But that fact alone that does not suffice to render Mr Vaisevuraki’s continued detention unlawful. That is the question I consider below.

[18]   It seems clear that although s 34 did not authorise the issuing of a warrant in the circumstances of Mr Vaisevuraki’s case, a warrant could have been issued under s 34A of the CPA, which provides:

34A When warrant may be issued irrespective of whether summons has been issued or served

(1)This section applies if a charging document has been filed for a category 2, 3, or 4 offence, whether or not a summons has been issued or served.

(2)A judicial officer or Registrar may issue a warrant to arrest the defendant and bring him or her before the District Court if the judicial officer or Registrar is satisfied that—

(a)a warrant is necessary to compel the attendance of the defendant (for example, because the location of the defendant is unknown); or

2      Habeas Corpus Act 2001, s 14(1).

(b)having regard to the gravity of the alleged offence and the circumstances of the case, a warrant is desirable to compel the attendance of the defendant.

[19]   Section 34A was inserted into the  CPA  in  2018  and  came  into  force  on 14 November that year,  some  six  months  prior  to  Mr  Vaisevuraki’s  arrest.  As Mr Herring pointed out, the learned authors of Adams on Criminal Law state that the amendment responded:3

… to the concern that service of a summons before a warrant may be issued, as required by s 34, may sometimes be an unnecessary or impractical first step. This includes, for example, where Police are seeking to extradite a person from overseas for a prosecution commenced in New Zealand or where the Police do not know the defendant’s location.

[20]   In the end I did not understand counsel for Mr Vaisevuraki to dispute that s 34A is, therefore, aimed precisely at cases such as Mr Vaisevuraki’s. And Mr Herring submits that the availability of s 34A—the fact that there might have been a lawful basis for the issue of the warrant—suffices to rebut the attack on the warrant actually issued. Mr Harré submitted, however, that the existence of the clear legal pathway offered by s 34A made the error here more egregious and more fundamental.

[21]   The correctness of Mr Herring’s submission turns firstly, I think, on whether the error here is one that would be saved by s 379 of the CPA, which relevantly provides:

379 Proceedings not to be questioned for want of form

No … warrant … may be dismissed, set aside, or held invalid by any court by reason only of any defect, irregularity, omission, or want of form unless the court is satisfied that there has been a miscarriage of justice.

[22]   As just noted, Mr Harré submitted here that the error was so fundamental that s 379 could not apply. And he said that there has been a miscarriage of justice here— in the form of Mr Vaisevuraki’s initial detention for six or so weeks in Australia as a result of the erroneous warrant and then his continued detention here, pursuant to consecutive warrants made on each adjournment of the proceeding—none of which

3      Adams on Criminal Law, online edition at [CPA34A.001], citing the Explanatory Note to the amending Bill.

could (in a factual sense) have been issued had it not been for his original (and unauthorised) arrest.

[23]   Mr Harré also referred me to the case of R v Hartley where the Court of Appeal considered (amongst other things) whether there was jurisdiction to commit a defendant for trial in circumstances where he had been illegally brought back to New Zealand by police.4 Relying on R v O/C Depot Battalion, RASC, Colchester, ex parte Elliott,5 the Court held that, although the relevant defendant (Mr Bennett) had been unlawfully returned, the Court retained jurisdiction to try him because he had subsequently been lawfully arrested within New Zealand and, by due process of law, brought before the Court. The Court nonetheless noted that where there was evidence of improper dealings by the authorities, the Court had a discretion to discharge      Mr Bennett under either s 347(3) of the Crimes Act 1961 (as it then was) or its inherent jurisdiction to prevent abuse of its own process. The Court observed that this was a case in which—if asked to exercise his discretion on that ground—the trial Judge would probably have been justified in doing so.

[24]   Mr   Harré   submitted   that—by   contrast   with   Mr   Bennett’s    case— Mr Vaisevuraki’s arrest in New Zealand was also based on the erroneous and (he said) invalid warrant.

[25]   The only other decision of which I am aware which may have a direct bearing on the present issue is that of John Hansen J in the context of the long-running saga involving the extradition of Mr Martin Mailley. Neither John Hansen J’s decision nor any citation for it seems readily available but it was summarised by the Court of Appeal in The General Manager of Auckland Central Remand Prison v Mailley.6 There, the Court said:

[13] In his application, dated 12 December 2008, for the writ of habeas corpus eventually granted Mr Mailley contended that both the endorsed warrant, and the warrants issued successively afterwards, were nullities. The principal deficiencies in the warrants of detention, which became the point of

4      R v Hartley [1978] 2 NZLR 199 (CA). The unlawfulness lay in the warrantless arrest of Mr Bennett by an off-duty police officer in Australia.

5      R v O/C Depot Battalion, RASC, Colchester, ex parte Elliott [1949] 1 All ER 373.

6      The General Manager of Auckland Central Remand Prison v Mailley [2009] NZCA 314. The Court of Appeal was considering the question of costs, not the merits of the habeas corpus decision.

focus for John Hansen J, were that they relied wrongly on ss 26(1)(a), 28(2) and 46(1)(a) of the Extradition Act, they referred incorrectly to s 18 and they misdescribed the endorsed Queensland warrant as a provisional warrant issued under s 42. There was also an inaccuracy as to a date. Those deficiencies apart, Mr Ellis on Mr Mailley’s behalf, mounted a wide ranging attack on those warrants and the endorsed warrant on at least three other fronts.

[26]   After describing the nature of the various other “attacks” mounted by Mr Ellis, the Court went on:

[15]      Counsel appearing for the General Manager, … contended in reply that it was only the consequence of the conceded deficiencies in the successive warrants of detention that was ‘properly susceptible to fair and sensible summary determination’. It was argued that the other points taken were beyond the scope of that application, and to be advanced rather by appeal or review: Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 at [47] – [52] (CA) (Manuel (No 1).

[16]      As to the single issue on which counsel for the General Manager did reply, she submitted that there could be no question that the judges who issued the warrants had both the power and the grounds to do so. The warrants themselves, she submitted, were merely administrative. Any errors they contained were merely formal and were explicable, as there was no fully definitive prescribed form. The errors gave rise to no injustice and were capable of cure under s 204 of the Summary Proceedings Act 1957.7

[17]      In granting the writ, John Hansen J accepted that last submission to this extent. He confined himself to the significance of the errors on the face of the 10 December 2008 warrant, and, implicitly, those in the warrants preceding. He did not, however, see any basis to go behind any of those warrants. They were, he held, the only record of any decision the issuing Judges had made. Their decisions stood or fell with the warrants. He regarded the errors in the last warrant, and those preceding, to be more than merely errors of form. He considered them all to be ‘seriously flawed’. That in itself, he said, created a significant miscarriage of justice. It was the responsibility of the judges, who issued those warrants, to ensure that they reflected the decisions they had made.

[27]I make the following observations.

[28]   First, the decision in Hartley—and the specific case of Mr Bennett—did not involve an application for a  writ  of  habeas  corpus.  The  decision  suggests  that Mr Bennett’s (and so Mr Vaisevuraki’s) potential remedies lie elsewhere. Indeed, I note that Mr Harré confirmed that Mr Vaisevuraki is bringing a separate challenge to the extradition process.

7      Section 204 of the Summary Proceedings Act has since been replaced by s 379 of the CPA.

[29]   Secondly, and in terms of the lawfulness of Mr Vaisevuraki’s arrest on arrival in New Zealand,8 my provisional view is that the defect in the original warrant would be capable of cure under s 369 because:

(a)unlike in Mailley there was only one error in the warrant (apart from a spelling mistake and the outdated reference to an indictment), namely the reference to s 34 rather than s 34A;

(b)s 34A was the obvious alternative provision and it would (in my view) have authorised the arrest, based on the grounds put forward by Detective Sergeant Espinosa in his affidavit; and

(c)there was no prospect of the error misleading Mr Vaisevuraki in any material way—the warrant made it clear that he was being arrested because he had been charged with multiple, serious, drug offences, which were set out in the warrant.

[30]   But thirdly, and more importantly, Mr Vaisevuraki’s detention is presently authorised by a warrant issued by the District Court just two days ago. As the Court of Appeal said in Misiuk v Chief Executive of the Department of Corrections:9

… the relevant date to consider an application for habeas corpus is at the date of hearing of the application. Irrespective of whether there may have been some prior deficiency in the lawfulness of the applicant's detention, if he or she is lawfully detained at the date of hearing there is no basis upon which the application may be granted.

[31]   And here, there is no error on the face of Judge Gibson’s warrant or those other Court warrants that preceded it. That is the crucial distinction between this case and Mr Mailley’s. And I agree with John Hansen J that there is no basis—in a habeas corpus context—for going behind warrants which are correct on their face. Any such “going behind” should be pursued in judicial review proceedings.10

8      Which was found to be the curative act in Mr Bennett’s case.

9      Misiuk v Chief Executive of the Department of Corrections [2010] NZCA 480, [2011] 2 NZLR 114 at [25]. This approach was expressly endorsed by the Supreme Court (refusing leave) in Misiuk v The Chief Executive of the Department of Corrections [2010] NZSC 140.

10 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 at [47] - [52] (CA) (Manuel (No 1).

Conclusion

[32]   Mr Vaisevuraki’s present detention is lawful. The application for a writ of habeas corpus is declined accordingly.

[33]I thank all counsel for the helpful submissions.

Rebecca Ellis J