PAWEL MARIAN MISIUK V THE PRISON MANAGER, MT EDEN REMAND PRISON HC AK CIV 2009-404-002648 [2009] NZHC 513 (8 May 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                               CIV 2009-404-002648


               IN THE MATTER OF           Habeas Corpus Act 2001

               BETWEEN                    PAWEL MARIAN MISIUK
                                          Applicant

               AND                        THE PRISON MANAGER, MT EDEN
     
                                    REMAND PRISON
                                          Defendant


Appearances: AJH Witten-Hannah
for the Applicant
             M A Woolford for the Defendant

Judgment:      8 May 2009


               ORAL INTERIM JUDGMENT OF
PRIESTLEY J




Counsel:
AJH Witten-Hannah, Magna Carta Chambers, 187 Hurstmere Road, Takapuna, North Shore City
0622. Email: [e-mail]
M A Woolford, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]




PAWEL MARIAN MISIUK V THE PRISON MANAGER,
MT EDEN REMAND PRISON HC AK CIV 2009-
404-002648 8 May 2009
[1]    This is an application properly brought under the Habeas Corpus
Act 2001.
There are disturbing and perplexing aspects about it.


[2]    The applicant has been competently and vigorously represented
by Mr
Witten-Hannah to whom the Court is obliged.


[3]    To some extent the application during the course of today has hovered
above
a constantly changing landscape.        The Habeas Corpus application was filed
yesterday afternoon. The Registry promptly,
and in accordance with the statutory
obligation contained in s 9, listed it for hearing before me at 10 o'clock this morning.


[4]
   Out of an abundance of caution the Registry also issued an order to produce a
prisoner (under s 26 of the Corrections Act 2004)
which I suspect was the major
reason why the applicant appeared in court this morning.


[5]    Mr Witten-Hannah informed me this
morning that yesterday he served the
defendant, the Prison Manager of Mt Eden Remand Prison, with the Habeas Corpus
application and
the supporting affidavit. For some reason, however, the prison
authorities did not adopt the normal procedure of immediately informing
their
superiors in Wellington and/or the Crown solicitors that this application was
pending. Initially therefore there was no appearance
by the defendant this morning.
However, as a result of inquiries made by counsel and the Court staff Mr Woolford
appeared at short
notice.


[6]    The Habeas Corpus application was originally founded on this basis:


       a)      The applicant was arrested
on Friday 24 April 2009 on two charges,
               being contravention of a protection order and threatening to kill his
   
           wife.


       b)      He entered not guilty verdicts before Judge Paul and was remanded on
               bail to 2 June
2009.


       c)      This appearance took place on the same day as the applicant's arrest
               (24 April).
        d)
    Whilst the applicant was being held in police custody, that day he was
               interviewed by an officer of the Immigration
Service and was served
               with a removal order.


        e)     This immigration intervention was known to Judge Paul.
The Judge
               appears to have been informed that the applicant was to be removed
               from New Zealand to Poland
early in the following week.


        f)     Despite that, and for reasons which are not apparent (but which may
              
well have something to do with pending charges) the Immigration
               Service then decided not to proceed with implementing
the removal
               order.   An application was made to withdraw the Warrant of
               Commitment which the Service
had obtained. The removal order thus
               lapsed on Monday 27 April.


        g)     That afternoon there was a further
hearing in the Auckland District
               Court at which the applicant's counsel sought the applicant's
               immediate
release.      The basis for that request is obvious.     The
               Warrant for Commitment no longer existed. Bail, which had been
           
   granted on Friday 24 April, was thus operative. The application was
               adjourned to the following day, Tuesday 28
April. This is the core of
               the Habeas Corpus application.


[7]     On 28 April the applicant again appeared, this
time before Judge de Jong. By
that stage the police appear to have made further inquiries. Various files relating to
the applicant
had been assembled. It now seems to be the position that, in addition
to the two charges to which I have referred, the applicant
was also being prosecuted
on seven other charges laid under the Summary Offences Act and the Domestic
Violence Act, and a single
charge under s 37 of the Bail Act of failing to answer
court bail.


[8]     Common ground emerges at this point between the above
recital of the
applicant's Habeas Corpus application and an apparent narrative. Judge de Jong
embarked on a bail application de novo.
This process was strongly resisted by Mr
Witten-Hannah in the District Court (he appears to have had some support of an
immigration
nature from another counsel, Mr E Orlov, but that is immaterial). Mr
Witten-Hannah's position, which he maintains here, is that bail
had been granted; he
was not re-applying for bail; the District Court was functus officio; there was no
fresh bail application before
it; and thus the applicant should be released forthwith.


[9]     Since the hearing began this morning counsel have been able to
obtain a copy
of Judge de Jong's 28 April bail minute. They have also obtained a copy of a
warrant of commitment signed by Judge
de Jong and dated 28 April 2009.


[10]    The Judge rejected a submission of the prosecution that there had been no
bail hearing
on 24 April. What he said was:

        In my view the strength of the argument is a change of circumstances and for
        the
Court to consider today whether it is appropriate for the defendant to be
        released on bail.

[11]    Mr Witten-Hannah's point,
which has jurisdictional force, is that in the
absence of any fresh bail application before it, or indeed some formal application
for
revocation of bail, the District Court had no bail application to determine. It follows,
submits Mr Witten-Hannah, that the warrant
which the Judge subsequently signed is
a nullity, there being no jurisdiction to issue it.


[12]    The way which counsel for the
applicant would like me to deal with the
matter is to release the applicant on interim orders under s 11 of the Habeas Corpus
Act.
Two deponents (Mr Shapkin and Ms Lanshikova) are prepared to make their
home available as a bail address in the interim and are happy
to enforce any interim
conditions which this Court might be minded to impose under the Habeas Corpus
Act. Those two deponents are
clearly involved in the applicant's welfare. They
have apparently made statements to the police which suggest that the applicant
has
an alibi in respect of the alleged offending for which he was arrested on 24 April.


[13]    Mr Woolford for his part opposes
the suggested s 11 relief. In his submission
the bail matter may be moot because, on his instructions, the police intend to arrest
the applicant for further alleged offending.
[14]   I note in passing that the warrant to which I have referred requires the
applicant
to be produced to the District Court at Auckland on 12 May 2009. The
significance of that date is puzzling since there is no mention
of it in Judge de Jong's
bail minute.


[15]   It is trite that Habeas Corpus applications are not to be used as a substitute for
bail appeals and/or judicial review applications.      Prima facie, of course, if the
hearing on which Judge de Jong embarked and
the resulting warrant were ultra vires
then judicial review would be the appropriate remedy. Mr Woolford, however, has
referred me
to the recent approach of the Court of Appeal that although judicial
review may be the preferred remedy courts should not decline to deal with
jurisdictional disputes lurking underneath Habeas
Corpus applications if such
disputes are capable of summary determination.


[16]   Mr Woolford's preferred option is that I should
adjourn this matter further.
He points to s 9(3) of the Habeas Corpus Act which requires three working days for
a hearing. I consider
that Mr Witten-Hannah is on strong grounds when he points
out that s 9(3) is silent on the issue of adjournments and that the hearing
on which I
embarked today is ultimately the determination of the Habeas Corpus application.


[17]   That said I have some reluctance
to make a final determination today given
the constantly shifting terrain to which I have referred. I have yet to see the bail
documents.
I have no explanation as to why the warrant signed by the Judge refers
to 12 May. I do not know whether there are previous extant
warrants which might
flow from the applicant's alleged failure to answer court bail. There has been some
suggestion that there have
been previous guilty pleas in respect of which there may
or may not be an application afoot in the High Court to vacate such pleas.
If there
have indeed been guilty pleas then prima facie s 13 of the Bail Act would apply.


[18]   Mr Witten-Hannah suggested that
I should be courageous and deal with the
application one way or the other today. The applicant clearly does not want to be
returned
to prison. Mr Witten-Hannah almost went as far as to suggest he would
prefer an unfavourable outcome rather than a further adjournment.
[19]    The Crown's position is that given what seems a likely appearance on 12
May, and indeed a possible earlier appearance on
11 May if there are further charges
to be laid against the applicant, the whole Habeas Corpus issue will be moot and on
fresh grounds
the whole issue of bail could be considered by the District Court de
novo.


[20]    I said at the outset I found this a perplexing
case. I have serious doubts about
the legitimacy of the District Court embarking on the bail hearing which it did on 28
April. There
is High Court authority which suggests that District Court Judges may
not have jurisdiction to revoke bail once it has been granted
in some circumstances
(Falealupe Palu v New Zealand Police (HC WN CRI 2004-485-26, MacKenzie J
and Ngaru Tai Enua v The Police (HC
ROT CRI 2006-463-88, Winkelmann J).


[21]    The stumbling block to Habeas Corpus however, is the warrant signed by the
Judge on
28 April. I quite simply do not have sufficient information at the moment
to determine, in a summary way, whether that warrant flows
from an illegitimate
hearing. It may well do, but there are various critical pieces of information and
documentation not available
to me.


[22]    I would not hesitate to invoke the strong and potent Habeas Corpus remedy if
I were satisfied that this was a blatant
and illegal detention. I fall, however, slightly
short of that conclusion, quite simply because of the lack of evidence to which
I have
referred.


[23]    What I intend to do therefore is to adjourn this matter for reconsideration by
the Duty Judge in this
Court on Tuesday 12 May 2009. Because on that date I will
be sitting on the Court of Appeal in Wellington the matter will have to
re-assessed (if
it is still a live issue) by the Judge presiding on that list.


[24]    I direct counsel to inform this Court immediately
if the Habeas Corpus issue
between now and then becomes moot. I also direct the Crown to obtain the further
information to which
I have referred (extant warrants and bail bonds). It is also
puzzling that there may be guilty pleas afoot. Information is required
on that.
[25]   In all these circumstances, and given that to invoke s 11 would in essence be
my granting bail to the applicant
under another guise, I decline to extend interim
remedy at this juncture.


[26]   Therefore interim relief is refused.        The
substantive Habeas Corpus
application remains afoot. It is adjourned as I have stated above. Regrettably the
applicant will have to remain in custody in the interim.




                                                           .............................................
                   
                                                                   Priestley J