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Misiuk v Superintendent of a Penal Institution HC Auckland CIV-2010-404-006242 [2010] NZHC 1895; [2011] 1 NZLR 393; [2010] NZAR 734 (23 September 2010)

Last Updated: 24 January 2018

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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

_{CIV-2010-404-006242}

UNDER the Habeas Corpus Act 2001 and the Bail

Act 2000

BETWEEN PAWEL MARIAN MISIUK Applicant

AND SUPERINTENDENT OF A PENAL INSTITUTION

Respondent

Hearing: 23 September 2010

Counsel: A G V Rogers and S C Abernethy for applicant

N M H Whittington for respondent

Judgment: 23 September 2010

_{RESERVED JUDGMENT OF DOBSON J}

Solicitors:

Crown Solicitor, PO Box 2213 Auckland for respondent (nick.whittington@meredithconnell.co.nz)

Counsel:

_{A G V Rogers for applicant} (agvr@xtra.co.nz)

MISIUK V SUPERINTENDENT OF A PENAL INSTITUTION HC AK CIV-2010-404-006242 23 September

2010

[1] On 21 September 2010, Mr Misiuk filed, on his own behalf, an application for a writ of habeas corpus. Consistently with s 9 of the Habeas Corpus Act 2001, the hearing has been brought on as a matter of urgency this morning. Mr Rogers and Ms Abernethy are now acting for Mr Misiuk in relation to his outstanding charges, and appeared to argue in support of Mr Misiuk’s application.

[2] Mr Misiuk has been in custody since 29 May 2009, on remand for a range of charges that are still pending in the Auckland and Waitakere District Courts. On

29 May 2009, Winkelmann J allowed a Police appeal against a District Court order that had granted bail for Mr Misiuk on relevant charges on 20 May 2009. Mr Misiuk claims that his detention is unlawful, thereby entitling him to the issue of a writ of habeas corpus. The essence of his claim, as he described the event to me in Court this morning, is that he was detained in the back of the Court directly after Winkelmann J had delivered her decision on 29 May 2009, he was told that he was “under arrest” and was conveyed from there directly to the Auckland Remand Centre.

[3] The documentation recording his remand in custody was in the form of a Registrar’s Certificate of Remand in Custody completed by a Deputy Registrar of this Court. That form would have been appropriate if the High Court decision to remand him in custody had been on an original decision, rather than an appellate one.

[4] It is clear that the result of the appeal was conveyed to Mr Misiuk as he was present when the Judge delivered her oral decision. He claimed this morning not to have understood the effect of the judgment. However, counsel then acting for him was sent the written terms of the decision in the usual way.

[5] Section 44 of the Bail Act 2000 provides, in part, as follows:

44 Execution of decision of High Court on appeal relating to bail

(1) If, on an appeal under section 41, the High Court determines that bail should not be granted or, as the case may be, should not be continued, a warrant for the detention of the defendant in custody must be issued out of the High Court and signed by a Judge.

(2) The person who executes the warrant must ensure that a copy of the notice of the result of the appeal is given to the defendant when the warrant is executed or as soon as practicable after the warrant is executed.

[6] It is common ground that no warrant for Mr Misiuk’s detention has thus far been signed consistently with the outcome of the appeal, and therefore there has not thus far been service on him of such a warrant. The short point on his present application is whether non-compliance with that requirement renders his detention unlawful.

[7] The urgent procedure under the Habeas Corpus Act is effectively a summary one. If successful, there is no right of appeal. Section 14(2) provides:

14 Determination of applications

...

(2) A Judge dealing with an application must enquire into the matters of fact and law claimed to justify the detention and is not confined in that enquiry to the correction of jurisdictional errors; but this subsection does not entitle a Judge to call into question—

...

(b) a ruling as to bail by a court of competent jurisdiction.

[8] It is appropriate to look at the substance of what has occurred, not just its form.^[1]

[9] On its terms, s 44 might suggest that a detained person has a right to have a warrant completed by a Judge and served as soon as practicable after it has been executed, so that his or her detention would not be lawful without that step being completed. However, s 136(1) of the Summary Proceedings Act 1957 suggests to the contrary. The relevant parts of s 136(1) provide:

136 Custody of person after determination of appeal

(1) Where the decision of the High Court on any appeal has been given...any person who is liable under that decision or, as the case may be, under the decision appealed from...to be detained in custody

and who is not in custody may be arrested without warrant by any constable or any officer of a prison.

[10] Section 42 of the Bail Act imports the procedural provisions from ss 116 to

143 of the Summary Proceedings Act to bail appeals under s 41 of the Bail Act. Accordingly, s 136 applied to the way in which Mr Misiuk was dealt with on the determination of the Police appeal.

[11] Section 136 avails the Police and Corrections staff in circumstances where a person previously bailed has to be located and remanded in custody when the person has not been present at the hearing of the bail appeal. When s 44 is read in light of that complementary power to arrest without warrant, the timing imperative for completion of the warrant contemplated by s 44 of the Bail Act loses its urgency. The detention needs to be regularised by the warrant required by s 44(1), but the detention in custody can certainly commence in reliance on s 136(1) of the Summary Proceedings Act, without the warrant having been executed or served.

[12] For the respondent, Mr Whittington cited the decision in R v Fisher^[2] in respect of an analogous complaint about the lawfulness of detention in custody unless a warrant, in that case under s 47(1) of the Summary Proceedings Act, had been concluded.

[13] Section 47(1) relevantly provided at the time:

(1) Where, pursuant to s.46 of this Act, the defendant is remanded in custody, the Court or Justice shall issue a warrant in the prescribed form for the detention of the defendant in custody for the period of the adjournment.

[14] The judgment continued in relation to that provision:

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.

[15] On the basis of the approach in Fisher, Mr Whittington submitted that the “lack of paperwork” does not render the detention unlawful because it was lawful on the basis of the oral order made in open Court.

[16] Here, the administrative process inappropriately relied upon a Registrar’s certificate. The essence of the certificate was to the effect that the sitting of the High Court at Auckland on 29 May 2009 had resulted in an order that Mr Misiuk be remanded in custody (at that time for a deposition hearing at Auckland District Court on 3 June 2009). That was literally correct. The error was one of form, as well as the difference in process because the certificate is addressed to Corrections personnel, and not copied to the detained person, which a warrant would have been. Given the power in s 136 of the Summary Proceedings Act to detain Mr Misiuk without warrant, and consistently with the observation of Blanchard J in Fisher that the warrant is needed for administrative purposes, I am satisfied that detention on

29 May 2009 without the completion of a warrant was not unlawful.

[17] Certainly, it would be exceptional to contemplate a lapse of 16 months between a remand in custody in reliance on the outcome of an appeal under s 41, and completion of the warrant, as will occur here. Now that the omission has been drawn to the Court’s attention, it is competent for another Judge, relying on the reasoning of Winkelmann J’s 29 May 2009 judgment, to complete a warrant that is consistent with the outcome ordered by her. That is the course I now intend to follow.

[18] Once the requirement of s 44 is classified as procedural rather than substantive, the question must arise as to whether the absence of procedural form has prejudiced Mr Misiuk. In this regard, Mr Rogers invoked s 23(1)(a) of the New Zealand Bill of Rights Act 1990, which confirms the right of everyone detained under any enactment to be informed at the time of detention of the reason for it. He submitted that the reasons for detention conveyed orally in Winkelmann J’s judgment did not adequately discharge the obligation to comply with Mr Misiuk’s rights under s 23(1)(a). On the facts, that may have some relevance because of his claimed inability to understand the effect of the judgment, but as a matter of law, reasons for his detention were indeed conveyed at the time. Given the circumstances

of his attendance throughout the argument of the Police appeal, and delivery of the oral judgment determining it, a delay in complying with the obligations under s 44 of the Bail Act cannot constitute the detention that followed in reliance on the judgment as being unlawful.

[19] Mr Rogers sought to elevate the seriousness of the absence of a warrant by reference to the reasoning in Mailley v General Manager, Auckland Central Remand Prison^[3]. In that case, after citing the passage from Fisher which is quoted in [14] above, the judgment continued:^[4]

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.

[20] The criticisms raised there are distinguishable. Although s 23(1)(a) of the New Zealand Bill of Rights Act is not referred to, the prejudice to the position of the applicant in that case was a genuine inability to discern the basis on which he had been remanded in custody. That arose in extradition proceedings where complications in the way in which Mr Mailley had been dealt with gave rise to genuine concern. With respect, Mr Misiuk cannot, at any relevant time, have laboured under an equivalent misapprehension as to the basis on which he was detained. I accordingly treat the observations in Mailley as distinguishable.

[21] Mr Whittington raised a further ground in opposition to the application for a writ of habeas corpus, namely that Mr Misiuk’s current detention, and indeed his detention for a vast majority of the period since 29 May 2009, has not in any event been pursuant to the judgment of Winkelmann J delivered on that day. In the time available, he was not able to research the position between May 2009 and March

2010, but was certainly able to instance a series of warrants of commitment that have been issued by the District Court for Mr Misiuk’s continued remand in custody, the most recent of which was issued by the Waitakere District Court on 6 September

2010. Mr Whittington’s argument was that, whatever the status of Mr Misiuk’s detention on 29 May 2009, as soon as a subsequent warrant was issued, then his detention no longer relied upon the order of this Court made on 29 May 2009 that ought to have been the subject of a warrant under s 44 of the Bail Act.

[22] I accept that point, at least to the extent that it would in any event prevent the grant of orders declaring his present detention to be unlawful. The subsequent warrants, not under challenge on behalf of Mr Misiuk, must have independent standing and are not tainted by any deficiency made out in respect of the steps taken pursuant to the judgment of 29 May 2009.

[23] In this regard, Mr Whittington drew attention to a subsequent appeal to this Court heard and determined on 21 December 2009 by Courtney J. That arose out of an unsuccessful application Mr Misiuk made in September 2009 for electronic bail, which was refused in the District Court by Judge Gittos and subsequently appealed to the High Court. Different counsel were then acting for Mr Misiuk. That judgment reviews the risks arising if Mr Misiuk were granted bail, and after relatively full consideration dismissed the appeal. Mr Misiuk pursued in person an attempt to further appeal that decision to the Court of Appeal, which was dismissed

for lack of jurisdiction on 27 April 2010.^[5] The circumstances of, and justification

for, his continued remand in custody have accordingly been thoroughly reviewed since the judgment of 29 May 2009.

[24] For all these reasons, I indicated at the conclusion of the hearing that I was satisfied that Mr Misiuk’s detention had been lawful, and accordingly Mr Misiuk is not entitled to the issue of a writ of habeas corpus.

[25] Mr Rogers was keen to air the prospective difficulties he anticipates in preparing for trial. Although there appear to have been numerous reconsiderations

of the appropriateness of continued remand in custody, I accepted that the difficulties Mr Rogers foreshadowed in taking adequate instructions for a District Court jury trial that is pending on 15 November 2010 may constitute changed circumstances that would warrant a fresh application. I indicated that I would be prepared to hear such an application, provided it is preceded by a thorough outline of both the grounds on which it is advanced, and the detailed arrangements for conditions of bail, and which should be conveyed to the Police in adequate time for a thorough response.

Dobson J

^[1] Manuel v Superintendent of Hawke’s Bay Regional Prison [2005] 1 NZLR 161 (CA) at [46].

^[2] R v Fisher HC Auckland T236/95, 4 October 1995.
^[3] Mailley v General Manager, Auckland Central Remand Prison HC Auckland CIV-2008-404-_{008316, 17 December 2008.}

^[4] At [10].

^[5] Misiuk v R [2010] NZCA 142.