Misiuk v The Chief Executive of The Department of Corrections
| Jurisdiction | New Zealand |
| Judge | Randerson J |
| Judgment Date | 20 October 2010 |
| Neutral Citation | [2010] NZCA 480 |
| Docket Number | CA672/2010 |
| Court | Court of Appeal |
| Date | 20 October 2010 |
[2010] NZCA 480
Randerson, Stevens and Keane JJ
CA672/2010
IN THE COURT OF APPEAL OF NEW ZEALAND
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.
Appellant in person
A R Longdill and N Whittington for Respondent
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.
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
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. This was dismissed by Dobson J on 7 October 2010. There is no appeal from that decision. On the same date, Dobson J also dismissed a fresh application by the appellant for bail, finding that he had no jurisdiction to grant bail.
The appellant submitted that the failure to issue the warrant required by s 44(1) of the Bail Act at the time of the hearing before Winkelmann J on 29 May 2009 meant that all subsequent warrants issued for his commitment to prison were also invalid. To the contrary, Ms Longdill for the respondent submitted there were a number of warrants subsequently issued by the District Court which were valid on their face and should be treated as lawfully authorising the appellant's continued detention in custody. She relied particularly on five warrants which we will shortly discuss.
Apart from the five warrants mentioned, Ms Longdill also referred to a sixth (issued by Judge Tremewan on 6 September 2010) but Ms Longdill accepted that this warrant expired at 9am on the day of the hearing before us (15 October 2010). We also note that it related to one of the two informations in respect of which Judge Wilson had granted bail on 17 February 2010.
The appellant submitted that, for various reasons, the five warrants relied upon by the respondent were invalid. We deal with each in turn.
This warrant of commitment for trial was issued under s 171 of the Summary Proceedings Act in respect of one...
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