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M J MAILLEY V THE GENERAL MANAGER, AUCKLAND CENTRAL REMAND PRISON HC AK CIV 2008-404-008316 [2008] NZHC 2063 (17 December 2008)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                             CIV 2008-404-008316

               UNDER                     the Habeas Corpus Act 2001

               IN THE MATTER OF          an application for
a Writ of Habeas Corpus

               BETWEEN                   MARTIN JAMES MAILLEY
                                         Applicant

               AND                       THE GENERAL MANAGER,
                                         AUCKLAND CENTRAL REMAND

                                        PRISON
                                         Defendant


Hearing:       17 December 2008

Appearances: T Ellis, A Shaw and E Frykberg for Applicant
             N Walker for Defendant

Judgment:      17 December 2008


                   ORAL JUDGMENT OF JOHN HANSEN J




Solicitors/Counsel:
Marshall Bird and Curtis, PO Box 105 045, Auckland
Crown
Solicitor, PO Box 2213, Auckland

T Ellis, PO Box 24347, Wellington


M J MAILLEY V THE GENERAL MANAGER, AUCKLAND CENTRAL REMAND
PRISON HC AK CIV
2008-404-008316 17 December 2008

[1]    The applicant for this writ of habeas corpus, presently known as Martin
James Mailley, faces a number of offences of a fraudulent nature in Queensland. On
5 February 2007 a Detective Godfrey swore an affidavit
seeking his extradition.
Some considerable time later following a further affidavit of Detective Godfrey, an
ex parte application
for endorsement of warrant was filed on 10 March 2008 in the
North Shore District Court. It was supported by a memorandum of the
applicant.
Ultimately, the applicant was brought before the Court and has been detained in
custody since July of this year.


[2]
   There have been applications for bail and appeals and certainly in relation to
those appeals, they have been adjourned at the
request of Mr Mailley's counsel who,
I stress, is not counsel now appearing.


[3]    Ultimately, however, this application for a
writ was filed on 12 December. It
has been heard over the greater portion of today. In the course of submissions, Mr
Ellis, in his
careful way, has mounted a thorough and sustained attack on the
extradition process. There are certainly matters that give strong
grounds to think that
this was an extremely flawed process. However, I do not consider I need to go into
those in detail today for
reasons that will become apparent.


[4]    On behalf of the defendant, who should be properly named as the Manager of
the Auckland
Central Remand Prison, it has been argued that a great number of those
matters are not capable of proper summary and fair disposition
and in terms of the
Court of Appeal decision in Manuel v Superintendent of Hawkes Bay Regional
Prison  [2005] 1 NZLR 161 should await disposal on the normal way by judicial
review or at the substantive extradition proceeding.


[5]    Of more moment,
however, in my view, for present purposes is the warrant
for detention that has been issued on a continuing basis since July. The
final one
with which we are concerned today is dated 10 December 2008 and was signed by
his Honour Judge Wilson QC. Counsel for the
defendant responsibly accepts that
there are errors on the face of this document. However, she mounts the substantive

argument
that they are errors of an administrative or minor kind that in no way attack
the validity of the order to detain Mr Mailley in custody.


[6]    It is perhaps appropriate at this juncture to detail those continuing defects. It
is apparent from the affidavit of the
Deputy Registrar of the North Shore Court that
when the first of these orders was made she was unaware of the appropriate form to
use. She sought precedent documents from other registries and used those to create a
document which she says she believed reflected
the Judge's order. The errors can be
found in the intituling where there are references to ss 26, 28 and 46 of the
Extradition Act
which it is accepted are irrelevant for present purposes. The body of
the document then records that Australia, as opposed to the
Commonwealth of
Australia, made a request under the Extradition Act on the 1 February 2007. That
date is incorrect. It is explained
that the Deputy Registrar must have picked it up
from the affidavit of Detective Mark Palma. However, the Australian affidavit is
in
fact dated 5 February 2007, not 1 February.


[7]    The document then purports to state that the request was made under s 18
of
the Extradition Act 1999. That is incorrect; it was not. It then records that on 14
March 2008 a provisional warrant was issued
by Judge Morris. Again a mistake.


[8]    Ms Walker has argued that the first part of the warrant may be ignored and
the operative
part in the second part of the document is correct. She also submits
that any errors are minor and that by application of the provisions
of the Summary
Proceedings Act, the Extradition Act, the Summary Proceeding Rules and the
Extradition Regulations, there is no basis
to hold the warrant invalid. In particular,
she refers to s 204 of the Summary Proceedings Act which applies to extradition
cases
pursuant to s 43 of the Extradition Act. She refers to authorities of Difarn v
The Superintendent of Mount Eden Prison HC AK M1062/92
8 July 1992,
Robertson J, and Inglin v General Manager of the Auckland Central Remand Prison
HC AK 9 June 2001, Nicholson J, as authority
for the proposition that a warrant will
not be held invalid where any defect, irregularity or omission or want of form does
not create
a miscarriage of justice. She further relies on a decision of Blanchard J in
R v Fisher T236/95 4 October 1995 and to the same effect
the decision of the Court
of Appeal in Henderson v The Superintendent of Manawatu Prison CA27/05 19 May

2005. She submitted what
is important is the Judges' order and they are the basis for
the lawfulness of the order made.


[9]    The following passage relied
on comes from Blanchard J's decision in
Fisher. He stated:

       It appears to me that it cannot be correct that after an oral
order for remand
       in custody has been made any detention is unlawful if a warrant of
       commitment is not subsequently
signed. A warrant is needed for
       administrative purposes and, if an issue is raised, for proof of the existence
       of the
Court order. But, because a period of time will always elapse between
       the making of the order and the drawing up and signing
of the warrant, it
       cannot have been intended that s.47(1) should make the warrant a
       prerequisite to the lawful holding
of the defendant in custody as ordered by
       the Court.

[10]   The difficulty in this case is that there is absolutely no evidence
of the orders
that were made in Court by these various District Court Judges and it appears that at
least one was made in Chambers back-dating the order, although I accept
the proper
submission that we are concerned with the 10 December one. There is no way of
knowing what order Judge Wilson made in
Court. We can only act on the face of the
warrant. The face of the warrant, in my view, is seriously flawed. This man has
been held
in custody since 2 July pursuant to such a flawed order and that in itself, in
my view, creates a significant miscarriage of justice.


[11]   I would also add that some serious consideration needs to be given to the
flaws that are apartment to date in the extradition
proceedings because they may be
so fatal the process needs to start again, but that is for others to determine. However,
I am quite
satisfied on the basis of the order which is flawed, in the absence of any
evidence of what orders were made in Court, that this
applicant is entitled to the writ
he seeks.


[12]   Accordingly, there will be a writ of habeas corpus addressed to the defendant
as The Manager, Auckland Central Remand Prison, Auckland, to release Mr Martin
James Mailley from prison.


[13]   It is the responsibility
of judges to ensure that the warrant signed properly
reflects the orders they make in Court and the lawful basis for such orders.

[14]   Memorandum as to costs to be filed by the Crown by 4:00 pm on 18
December 2008.




                                   
                         ..............................
                                                                       John
Hansen J




                                    ADDENDUM


[15]   I would just expand briefly on paras [10] and [13] above. In the
absence of
any other material, other than the warrant, it is impossible to ascertain under what
statutory provisions the District
Court Judges purported to detain the applicant.