Misiuk v R [2011] NZCA 323 (15 July 2011)

Last Updated: 20 July 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA397/2011 [2011] NZCA 323

BETWEEN PAWEL MARIAN MISIUK Applicant

AND THE QUEEN Respondent

Counsel: M J Kidd for Applicant C A Brook for Respondent

Judgment: 15 July 2011 at 11.00 am

JUDGMENT OF STEVENS J

The application for bail is dismissed.
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REASONS

Introduction

[1] The applicant Pawel Marian Misiuk was convicted following a trial before Judge Field in the District Court on 6 April 2011 on ten out of twelve charges including burglary, theft, threatening to kill and contravening a protection order.[1] He was remanded in custody pending sentence. On 18 April 2011 Mr Misiuk entered a guilty plea to a further charge of escaping from custody, relating to events in October 2010. On the same day he was sentenced by Judge Field on all the charges to a total of four years and one month imprisonment. Mr Misiuk has appealed against his conviction and sentence.
[2] So far as the conviction appeal is concerned, the notice of appeal filed by Mr Misiuk states the grounds are “to be advised”. An affidavit filed by the applicant through his counsel Dr Kidd, suggests that, in relation to the charge of burglary and possibly other charges, a ground of appeal will involve a lack of forensic evidence linking him to the crimes. A further potential ground is that his defence to these charges was prejudiced by an inability to retain a trial lawyer. On the sentence appeal, Mr Misiuk asserts numerous grounds, including that the District Court Judge considered case law involving actual violence when there was none; that there was an absence of aggravating features such as drug or alcohol dependency; and that on the burglary charge the sentence was far too severe.
[3] Mr Misiuk first applied for bail to the High Court. That application came before Lang J on 17 June 2011 but was struck out for want of jurisdiction.[2] Mr Misiuk also filed an application for habeas corpus in the High Court. That application was dismissed by Lang J on 22 June 2011.[3] An appeal to this Court, the fourth such application for habeas corpus made by Mr Misiuk since he was detained in May 2009, was dismissed on 11 July 2011.[4]
[4] On 7 July 2011, this Court accepted that a notice of appeal against the High Court refusal to grant bail should be treated as an application for bail pending the determination of his appeal under s 70 of the Bail Act 2000.[5]
[5] Despite the fact that Mr Misiuk is represented by counsel, Mr Misiuk has continued to file documents personally with the Registry.[6] These include a memorandum to the Judge filed on 11 July 2011, an affidavit by the applicant concerning bail dated 12 July 2011 and an interlocutory application for oral evidence in support of application for bail dated 12 July 2011.

The application for bail

[6] I have personally considered Mr Misiuk’s application for bail pursuant to s 393(2)(d) of the Crimes Act 1961. In particular, I have considered the application to call oral evidence in support. This application is declined. There is nothing contained in the application that would warrant this Court hearing oral evidence in support of the application. That course would only be permissible in exceptional circumstances. For reasons set out below, this is not one of them.
[7] Dealing with the application for bail, the applicant (according to the memorandum filed by counsel on 13 July) relies on four factors. These are: the factor of delay; that the applicant has been mistreated in prison; that there is no evidence to suggest he presents a threat to his former spouse (the victim of his offending); and that there were difficulties experienced by the applicant in obtaining representation in the original hearings before the District Court Judge. The applicant submits that together these matters constitute exceptional circumstances warranting the grant of bail pending appeal. Counsel submits that changes to the legal aid system have made it exceptionally difficult for people in the applicant’s position to obtain effective representation.
[8] The Crown opposes bail on the following basis. In a written memorandum, Ms Brook accepts that the merits of the appeal are relevant when considering whether the applicant has discharged the burden of overturning the statutory presumption against bail. But she submits that in the current case, the grounds of appeal against sentence are insufficiently compelling to warrant bail. Further, an accurate assessment of the grounds of the appeal against conviction cannot be made as limited grounds have been provided.

Discussion

[9] The test to be applied in relation to the application is that set out in s 14 of the Bail Act. Under s 14(1), bail is not to be granted unless the Court is satisfied on the balance of probabilities that it would be in the interests of justice in the particular case to do so. Section 14(2) provides that the onus is on the applicant to show why bail should be granted.
[10] In terms of the strength of the appeal, this Court has frequently noted that it is neither necessary, nor appropriate, to embark upon an extensive analysis of the merits of the appeal when determining an application for bail.[7] It is almost impossible on the material presently available to gauge the prospects of success of the conviction appeal. So far as the sentence appeal is concerned, there is simply insufficient information available at this stage to determine whether the sentence of four years and one month imprisonment was manifestly excessive. Whether the appeal both against conviction and sentence has any merit will be addressed at the hearing.
[11] So far as the conviction appeal is concerned, I agree with the submission on behalf of the Crown that there are not sufficiently compelling grounds to render this an exceptional case warranting the displacement of the statutory presumption against bail. On the material presently available, the applicant has not demonstrated that the grant of bail should be granted in the interests of justice.
[12] The applicant has continually challenged his detention by way of applications for bail, applications for writs of habeas corpus and appeals against refusals of those applications. His status has therefore been reviewed in the District Court, High Court and this Court on a number of occasions. Lang J, in reviewing the applicant’s application for a writ of habeas corpus in the High Court, stated that virtually all of the issues raised by the applicant, including any lack of an evidential basis for his convictions and a claim that his sentence was a violation of international law, were substantive issues to be determined by this Court when it heard the appeal.[8] I agree.
[13] Mr Misiuk also relies on a number of matters in terms of his personal circumstances. These include alleged mistreatment in prison; his contention that he is not a threat to his former spouse; and his belief that he has been unjustly treated by the New Zealand court system. None of these matters assist the applicant, given his status as a sentenced prisoner. Any issue of alleged mistreatment in prison cannot be resolved in the present application.
[14] Therefore I am satisfied that nothing has been raised by the applicant, either in relation to the conviction or sentence appeals, to suggest that this is one of those exceptional cases in which bail pending appeal should be granted.

Hearing of the appeal

[15] First, I note that the applicant is already eligible for parole. A hearing before the Parole Board is scheduled for 4 September 2011.
[16] Further, I have been informed by the Registrar that a hearing date is available for Mr Misiuk’s appeal against conviction and sentence on Wednesday 14 September 2011. It is relevant to the above analysis that an early hearing date is available, meaning that there will not be a lengthy delay. Counsel accepted that a date of hearing in the near future would make bail “problematic”.

Result

[17] Overall, none of the factors raised by Mr Misiuk is sufficiently compelling to establish that bail is in the interests of justice. Accordingly, the application for bail is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Misiuk DC Auckland CRI-2010-0004-4873, 15 April 2011 (transcript).
[2] See minute of Lang J dated 17 June 2011.

[3] Misiuk v Chief Executive of the Department of Corrections HC Auckland CRI-2011-404-50, 22 June 2011.

[4] Misiuk v Chief Executive of the Department of Corrections [2011] NZCA 318.
[5] See minute of Glazebrook J dated 7 July 2011.

[6] This is despite the fact that Mr Misiuk’s counsel filed a memorandum concerning bail on 13 July 2011.
[7] R v De Bruin [2007] NZCA 76 at [9], citing Ellis v R [1998] 3 NZLR 555 (CA).

[8] Misiuk v Chief Executive of the Department of Corrections HC Auckland CRI-2011-404-50, 22 June 2011 at [14].