MISIUK V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS & ORS HC AK CIV-2011-404-006821

MISIUK V CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS & ORS HC AK CIV-2011- 404-006821 8 November 2011IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYCIV-2011-404-006821IN THE MATTER OF Habeas Corpus Act 2011BETWEEN PAWEL MARIAN MISIUKApplicantAND CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONS &ORSRespondentsHearing: 31 October 2011Appearances: P M Misiuk in PersonF Cuncannon for RespondentsJudgment: 8 November 2011 at 4:30 PMRESERVED JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Tuesday, 8 November 2011 at 4:30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel: Meredith Connell, DX CP24063, Auckland.And to: P Misiuk.[1] Mr Misiuk continues his crusade against the New Zealand criminal justice system. This is his sixth application for a writ of habeas corpus. As recently as 10 October 2011, the Supreme Court declined his application for leave to appeal the decision of the Court of Appeal in relation to his fifth habeas corpus application.[2] The Supreme Court states in a one paragraph judgment:1[1] The application for habeas corpus had no prospect of succeeding as the applicant is being held in prison under a warrant of committal issued as a consequence of the imposition of a sentence of imprisonment which he is currently still serving. The appeal to the Court of Appeal was therefore rightly dismissed and the application for leave to appeal to this Court cannot succeed. The arguments put forward by the applicant related to the processes of the Court of Appeal and provide no basis for a reconsideration of its decision. It was well open to the Court to make an award of costs as it did.[3] The warrant of commitment to which the Supreme Court refers is dated 18 April 2011 and is signed by Judge C J Field. It refers to a conviction for burglary entered on 6 April 2011, in respect of which Mr Misiuk was sentenced to four years imprisonment. Mr Misiuk has calculated that, because of time spent on remand, the four year prison sentence will expire at the end of January or the beginning of February 2013. On the face of it, Mr Misiuk is lawfully detained and there is therefore no basis for the issue of the writ of habeas corpus. However, Mr Misiuk has a multitude of complaints about the criminal justice processes which led to the entry of conviction for burglary and the imposition of a four year term of imprisonment.[4] When he came into Court, he brought with him from prison a number of informations he had sworn before a Justice of the Peace at the prison. He asked me to accept the informations for filing in the High Court. He also asked for my assistance to have the Registrar of the Court witness his signature on one further information he had drafted. I declined to do so. I advised him to have the one further information sworn before a Justice of the Peace at the prison and then post them to the Auckland District Court with a request that they be accepted for filing. One of the prosecutions which Mr Misiuk will attempt to initiate by filing of the1 Misiuk v Chief Executive of the Department of Corrections [2011] NZSC 122.informations is against Judge Field, the Judge who convicted and sentenced him to four years imprisonment. He alleges that Judge Field unlawfully falsified documents.[5] Mr Misiuk's application for a writ of habeas corpus dated 26 October 2011,states in full:1. My name is Pawel Marian Misiuk, and I am quasi – political prisoner of corruption, ill-will, incompetence, and femin-nazism, currently held at Mr Eden Corrections Facility private prison, where I am subject to further cruel, tortureous, degrading, and disproportionately severe treatment and overall punishment;2. I appear before New Zealand Courts, and other judicial tribunals almost 300 times up to date, and because of this inhumane cruelty I spend almost 3 years in prison custody on 3 occasions being accepted by management without warrant signed by Judge;3. I claim that New Zealand justice system is dysfunctional, nepothic, and inherently corrupt;4. I know that I do not have any chance to rely, or involve any human rights in this barbaric British dominium, therefore I am desparate to claim my animal rights as animal instead of human, as it was said by members of the British House of Lords in Huang v Secretary of State for the Home Department [2007] 2 AC167– quote:(...) ―Human beings are social animals (...)– unquote;5. I was transported in a cage-van like other sisters and brothers animals between my barn (prison) and my butchers (Courts) well over 150 times between December 2006, and April 2011. I was told by Ms MegLamont that I am ―an animal last year when complained no access towater and toilet for hours awaiting in a holding cell. I was verbally, and physically assaulted by Dept of Corrections officers when attempted to claim my civil, or human rights, and openly demonstrated my innocence;6. I know that as animal, I have better chance for humain treatment in New Zealand under Animal Welfare Act, and expect to receive fair trial as English (or rather Piglish language) speaking animal instead of non- citizen human being only;7. I am sure that if animal welfare activists groups were aware of my situation, I may be provided with their support, and perhaps even public protestations;8. I am also sure that there are right minded and sensible Judges within the Courts, and I pray to God – Creator of all good Universe we are turning into hell – that my subsequent Habeas Corpus application could reach one of those strong in heart and character, instead of thoseincompetent, impotent or dispositional toward ―legal fiction called Crown or Regina – an ancient fraud and crime family living between us, and drinking our blood like all aristocratic social vampires.[6] There is reference in the second paragraph to ―being accepted by management without warrant signed by Judge. I am however only able to consider the lawfulness of Mr Misiuk's detention at the present time and I have been provided with a warrant signed by a Judge on 18 April 2011. It is still current. There are no other specific grounds pleaded in the application which relate to the lawfulness of his detention.[7] Mr Misiuk filed a second document entitled ―Interlocutory Application forOral Evidence and s 11 Relief with his application for a writ of habeas corpus. Hestates that the need for oral evidence is:―absolutely essential due to the facts relevant to the case, interests of justice,and basic fairness to the Applicant who doesn't have any access to properfacilities which he applied for formerly on at least 7 occasions since 2009,but was either ignored or unsuccessful.[8] Section 11 of the Act provides for interim relief. It states:11 Interim orders for release from detention(1) The High Court may make an interim order for the release from detention of the detained person pending final determination of the application, and may attach any conditions to the order that the Court thinks appropriate to the circumstances.(2) In the case of a detained person who is charged with an offence to which the Bail Act 2000 applies, the Court must not make an order under this section if the Court is of the opinion that bail would not be granted to that person under that Act.(3) If a person has been released from detention under an interim order, the Court may, on the application of the person released or any party to the proceeding or on the Court's own initiative, make an order—(a) revoking the interim order; or(b) varying or revoking any condition of the interim order or substituting or imposing any other condition.(4) If a detained person who is in custody under a conviction is released under an interim order, the time during which the person is released does not count as part of any term of detention under the person's sentence if on a final determination of the application the writ of habeas corpus is refused.[9] During the course of the hearing, I asked Mr Misiuk repeatedly to advise me of the nature and scope of the oral evidence he wished to give. He was unable to do so in a succinct and coherent manner. He said he had 80 folders of documents relevant to his civil, criminal and immigration circumstances and referred me to a number of documents he took from the one folder he had brought with him from prison. These included notes of Judge D G Mather on a bail application dated 28 August 2008 and a police opposition to bail form dated 24 April 2009.[10] He talked of the unbearable psychological abuse and torture. He said that his children, his mother and his ex-wife had all been the subject of gross injustice.[11] I concluded from what he had told me that Mr Misiuk wanted to challenge the basis of his various convictions. The summary habeas corpus procedure is however quite unsuited to such challenges. I advised Mr Misiuk that the properprocedure to challenge his convictions would be either by way of appeal or judicial review with affidavit evidence. I am quite unable on an application for a writ of habeas corpus to determine a wide range of disputed facts relating to his convictions.I decline Mr Misiuk's application for oral evidence.[12] Subsequent to receipt of the notice of opposition filed by the Chief Executive of the Department Corrections, Mr Misiuk filed a further interlocutory application for an order for trial before a Judge with a jury and a memorandum. The stated reason for the application for trial of the habeas corpus application before a Judgeand jury included the existence of some sort of ―judicial mafia and the fact that theNew Zealand legal system is significantly corrupt and ―act against imperative of equity, equality and justice. There is however no provision in the Habeas Corpus Act for trial by Judge and jury. The lawfulness of detention is a legal question to be determined by a Judge on the basis of established facts. Those facts do not have to be established by an applicant such as Mr Misiuk. The facts justifying detention have to be established by the entity detaining the applicant. The credibility of an applicant is not an issue in those circumstances.[13] Furthermore, given the urgency with which applications for a writ of habeas corpus are required to be heard, it would not be more convenient in terms of s 19B(2) Judicature Act for the application to be heard by a Judge and jury. I declineto order a hearing of Mr Misiuk's application by a Judge and jury.[14] In his memorandum, Mr Misiuk, firstly, asserted that the notice of opposition incorrectly limits the respondents to the Chief Executive of the Department of Corrections. Mr Misiuk states that the Attorney-General, the New Zealand Parole Board and the Minister Justice should also be respondents.[15] Mr Misiuk then asserts that any costs sought by the respondent should be sought from the Chief High Court Judge, Winkelmann J.[16] He concludes by stating that his detention continues to be arbitrary, cruel and inhuman and in breach of ss 21 and 22 of the Bill of Rights Act, the UN Conventionagainst Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and the Optional Protocol to the International Covenant on Civil and Political Rights.[17] I am satisfied however that Mr Misiuk's detention is lawful. His application for writ of habeas corpus is dismissed. The question of interim relief under s 11 does not arise.[18] Costs of $500 are awarded to the respondent on the basis that, notwithstanding advice that he should pursue his grievances in a manner more suited to their resolution, Mr Misiuk continues to make completely unwarranted applications for a writ of habeas corpus...Woolford J