Misiuk v The Chief Executive of The Department of Corrections

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeRanderson J
Judgment Date20 October 2010
Neutral Citation[2010] NZCA 480
Docket NumberCA672/2010
Date20 October 2010

[2010] NZCA 480



Randerson, Stevens and Keane JJ


Pawel Marian Misiuk
The Chief Executive of the Department of Corrections

Appellant in person

A R Longdill and N Whittington for Respondent

Appeal against a High Court decision which declined the appellant's application for a writ of habeas corpus — High Court had revoked the appellant's bail — by error the administrative requirements of s44 Bail Act 2000 (execution of decision of High Court on appeal relating to bail) were not complied with — error held to be one of form not substance — subsequent warrants issued — whether the failure to issue the warrant required by s44(1) BA meant that all subsequent warrants issued for the appellant's commitment to prison were also invalid.

Held: All subsequent warrants issued were valid; the fact that the warrant of commitment for trial had not specified the trial date had not invalidated it. Neither the SPA nor Form 43 of sch1 of the Summary Proceedings Regulations 1958 (appeal from decision of District Court relating to bail) required the warrant of commitment to include the hearing date; that was a matter of administration. Although the second warrant appeared to have an error in that it purported to authorise M's detention pending his call-over where it ought to have been expressed to remain in place until trial, a ruling as to bail by a Court of competent jurisdiction could not be called into question on an application for a writ of habeas corpus.

Irrespective of whether there may have been some prior deficiency in the lawfulness of M's detention, if M was lawfully detained at the date of hearing there was no basis upon which an application for habeas corpus could be granted. As a matter of practicality, it was inevitable that there would be some delay between the pronouncement of the Court's decision regarding bail and the preparation and execution of the warrant.

However, the deficiencies in the warrant procedure had been overtaken by the warrants subsequently issued in the District Court. At the date of the hearing of the application in the HC and at the date of the hearing of the appeal, M's custody was lawful on the basis of the subsequent warrants issued which authorised M's detention until his trial in November. While the warrants had not necessarily covered all of the informations that had given rise to the current indictment, it was sufficient if M's detention in custody was authorised by a valid warrant in respect of any one of the informations at the time of the hearing of the application.

The warrants were valid on their face and demonstrated a fresh exercise of judicial authority at the time they were issued. There were no grounds to challenge the issue of the warrants on administrative law grounds or otherwise. It was clear from successive applications made for bail that the DC had independently exercised its discretion afresh in relation to M's continuing detention in custody.


The appeal is dismissed.


(Given by Randerson J)


Mr Misiuk has appealed against a decision of Dobson J declining an application for a writ of habeas corpus. 1 He is currently detained in the Auckland Central Remand Prison but submits his continued detention is unlawful.


Initially, this matter came before a panel comprising Chambers, Stevens and Keane JJ on 13 October 2010. It was adjourned until 15 October 2010 so that the Crown could provide further information requested by the Court. The matter resumed on 15 October 2010 but, because Chambers J was overseas, Randerson J was substituted. In the circumstances, the appeal proceeded de novo.


On our own initiative we have substituted the correct respondent to this appeal.


At the conclusion of the hearing on 15 October 2010, we announced our decision that the appeal was dismissed with reasons to follow. These are those reasons.


The appellant's claim principally rests on what occurred following a bail appeal heard in the High Court at Auckland on 29 May last year. 2 On that occasion, Winkelmann J, Chief High Court Judge, revoked bail. By error, the administrative requirements of s 44 of the Bail Act 2000 were not complied with. No warrant for the appellant's detention in custody was issued as required by s 44(1) but the appellant was nevertheless taken into custody and remanded to appear in the District Court. He has remained there ever since and now faces a jury trial in the District Court in November 2010 alleging 11 counts mainly involving alleged breaches of a protection order but also including charges of theft, burglary and threatening to kill.


Just four days after the decision of Winkelmann J, the appellant appeared in the District Court before Judge Kiernan on 3 June 2009. The Judge remanded him in custody on a warrant issued that day until 6 August 2009 when a further warrant was issued by Justices of the Peace until 12 October 2009. Since then numerous warrants have been issued by the District Court and the appellant has sought bail on several occasions.


On 21 December 2009, Courtney J 3 dismissed an appeal by the appellant against the refusal of bail in the District Court by Judge Gittos in September 2009. An appeal from Courtney J's decision was dismissed by this Court on 20 April 2010 for want of jurisdiction. 4 This Court observed, however, that there was no error of principle demonstrated in respect of Courtney J's decision. 5


On 17 February 2010 Judge Wilson QC granted bail on two informations faced by the appellant while noting that he remained in custody on other charges. On 2 March 2010, Judge Field declined the appellant bail on a number of other informations.

The decision under appeal

Dobson J dismissed the appellant's application for habeas corpus on a variety of grounds. While accepting that s 44(1) of the Bail Act had not been complied with, he noted that s 136(1) of the Summary Proceedings Act 1957 (imported by s 42 of the Bail Act into bail appeals under s 41 of that Act) gave authority for the appellant to be arrested without warrant by any constable or prison officer at the conclusion of the hearing before Winkelmann J.


The Judge noted that a Registrar's Certificate had been issued recording the orders made by Winkelmann J which the appellant had been aware of since he was present in Court when the Judge gave her decision. The Judge considered the

Certificate would have been appropriate if the High Court had been exercising its originating bail jurisdiction.

Dobson J considered in the circumstances that the error was one of form rather than substance and that it was competent for another Judge, relying on the judgment of Winkelmann J of 29 May 2009, to complete a warrant consistent with the outcome ordered by her. That was so despite the exceptional lapse of 16 months between a remand in custody and completion of the warrant.


The Judge accepted a submission by the respondent that subsequent warrants issued in the District Court were sufficient to justify the appellant's detention. He was satisfied that, in the light of later decisions when the appellant had again been denied bail, the subsequent warrants were independently issued and not tainted by any deficiency in the steps taken after Winkelmann J's decision of 29 May 2009.


On 5 October 2010 the appellant filed a fresh application for a writ of habeas corpus....

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