Misiuk v Chief Executive of the Department of Corrections HC Auckland CIV 2011-404-1346

[2011] NZHC 209

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV 2011-404-1346

BETWEEN  PAWEL MARIAN MISIUK Applicant

ANDCHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS Respondent

Hearing:         14 March 2011

Counsel:         P M Misiuk, Applicant in person

N H Malarao for Respondent

Judgment:      14 March 2011

Reasons:        14 March 2011

REASONS FOR JUDGMENT OF LANG J

Solicitors:

Crown Solicitor, PO Box 2213, Auckland
Copy to:

P M Misiuk, in person

MISIUK V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS HC AK CIV 2011-404-1346

14 March 2011

[1]      Mr  Misiuk  has  applied  for  a  writ  of  habeas  corpus.    This  is  the  fourth occasion on which he has lodged such an application.

[2]      The correct respondent should be the Chief Executive of the Department of Corrections.  On my own initiative I substitute the Chief Executive as the respondent in this proceeding.

[3]      Mr Misiuk is currently in custody pending trial in the District Court on a number of charges.  Over the last two years Judges and Justices of the Peace have signed several warrants in the District Court remanding him in custody pending his trial.

[4]      The Crown has provided examples of two of these, namely a warrant issued by the Justices of the Peace on 18 August 2009 and a warrant issued by His Honour Judge Kellar on 24 June 2010.  Counsel for the Crown advises me that Mr Misiuk is currently engaged in a Judge alone trial in the District Court that encompasses the two charges in respect of which these two warrants were issued.  The trial appears to be at an advanced stage, with the Crown having completed its evidence and Mr Misiuk being about to elect whether or not give or call evidence on his own behalf.

[5]      The application falls to be determined according to established principles. One of these is that the Court will not issue a writ of habeus corpus where the applicant is being detained pursuant to a warrant of committal issued by a court of competent jurisdiction.

[6]      On the second occasion on which Mr Misiuk applied for a writ of habeas corpus his application was dismissed by Dobson J.[1]   The Court of Appeal dismissed his appeal against that decision and said:[2]

[1] Misiuk v Superintendent of a Penal Institution HC Auckland CIV 20111-404-6242, 23 September 2010. 

[2] Misiuk v Superintendent of a Penal Institution [2010] NZCA 480 at [30]-[31].

[30]    The warrants we have identified are valid on their face and we are entitled to treat them,  prima  facie, as demonstrating a  fresh  exercise  of judicial authority at the time they were issued. As this Court has made clear

in  R  v  Manuel,[3]   the  production  of  apparently  regular  warrants  will  not always be a decisive answer to a habeas corpus application. However, this Court went on to say that:[4]

[3] R v Manuel [2005]1 NZLR 161 (CA).

[4] At [49].

… it will be a rare case, we think, where the habeas corpus procedures will permit the Court to inquire into challenges on administrative law grounds to decisions which lie upstream  of  apparently  regular  warrants. This  is particularly likely to be the case where the decisionmaker is not the detaining party.

[31] There is nothing before us to suggest that there is any justification to challenge  the  issue  of  the  warrants  relied  upon  on  administrative  law grounds or otherwise. No such material has been placed before us by the appellant. Even if there had been such material, we do not consider, in the current context, it would be appropriate to institute any such inquiry. Importantly, it is clear from the successive applications made for bail after

29  May  2009  that  the  District  Court  has  independently  exercised  its

discretion  afresh  in  relation  to  the  appellant’s  continuing  detention  in custody.

[7]      Mr Misiuk has advanced nothing in support of the present application to suggest that a writ of habeas corpus should be granted.   He remains in custody pursuant to warrants that appear, on their face, to have been validly issued by the District Court.   Those warrants will remain operative for the duration of his trial. This will include the sentencing hearing in the event that he is found guilty on any of the charges that he currently faces.[5]

[5] Evans v Police HC Auckland CRI 2006-404-112/113, 27 April 2006 (Frater J).

[8]      There being no legal or factual basis for the issue of the writ that Mr Misiuk seeks, the application is dismissed.

Lang J