MISIUK V THE ATTORNEY GENERAL COA CA846/2011

MISIUK V THE ATTORNEY GENERAL COA CA846/2011 [17 February 2012]IN THE COURT OF APPEAL OF NEW ZEALANDCA846/2011[2012] NZCA 13BETWEEN PAWEL MARIAN MISIUKApplicantAND THE ATTORNEY GENERALRespondentHearing: 7 February 2012Court: Glazebrook, Wild and White JJCounsel: No appearance for the ApplicantA M Powell for RespondentJudgment: 17 February 2012 at 2.30 pmJUDGMENT OF THE COURTA The application for a writ of habeas corpus should not have been accepted for filing in the High Court.B The appeal is struck out.REASONS OF THE COURT(Given by Glazebrook J)Introduction[1] Mr Misiuk is serving a sentence of four years imprisonment following his conviction for burglary in April 2011. He is imprisoned pursuant to a warrant of commitment dated 18 April 2011 and signed by Judge C J Field.[2] Mr Misiuk has in the past challenged his incarceration under this warrant by way of an application for a writ of habeas corpus. His application was unsuccessfulbefore the High Court1 and on appeal to this Court.2 His application for leave to appeal to the Supreme Court was also dismissed.3This matter[3] Woolford J, in Misiuk v Chief Executive of the Department of Corrections,dismissed what he described as Mr Misiuk's sixth application for a writ of habeascorpus.4 Mr Misiuk has filed a notice of appeal against this decision.[4] In a minute of 18 November 2011 Arnold J outlined his preliminary view that Mr Misiuk's application to the High Court was filed contrary to s 15(1) of the Habeas Corpus Act 2001 (the Act).5[5] Section 15(1) of the Act provides:Subject to the rights of appeal conferred by section 16 of this Act and to sections 7 to 10 of the Supreme Court Act 2003, the determination of an application is final and no further application can be made by any person either to the same or to a different Judge on grounds requiring a re- examination by the Court of substantially the same questions as those considered by the Court when the earlier application was refused.[6] Arnold J noted that he was minded to direct the Registry not to accept Mr Misiuk's notice of appeal for filing. Before making any such decision, Arnold J gave Mr Misiuk the opportunity to file submissions on that issue. The matter of jurisdiction was then set down before us.[7] Mr Misiuk, by facsimile, informed the Court that he was not going to appear on the issue of jurisdiction as his appeal was filed as of right and should be heard. Mr Misiuk was informed by the Registry that the Court would hear orally from him1 Misiuk v Chief Executive of the Department of Corrections HC Auckland CRI-2011-404-50, 22June 2011.2 Misiuk v Chief Executive of the Department of Corrections [2011] NZCA 318.3 Misiuk v Chief Executive of the Department of Corrections [2011] NZSC 122.4 Misiuk v Chief Executive of the Department of Corrections HC Auckland CIV-2011-404-6821,8 November 2011. There has since been a further application for habeas corpus dismissed in theHigh Court by Toogood J: Misiuk v Chief Executive of the Department of CorrectionsHC Auckland CIV-2012-404-460, 3 February 2012.5 The Judge also noted that the grounds of appeal have nothing to do with the legality ofMr Misiuk's detention.if he wished to be heard on the issue of jurisdiction but he did not take up the Court'sinvitation.Our decision[8] It is clear that Mr Misiuk's application to the High Court for a writ of habeascorpus (and his previous applications) all concerned substantially the warrant of commitment referred to above. Section 15(1) of the Act precludes the making of a further application in such circumstances. The application dealt with by Woolford J should not have been accepted for filing in the High Court.[9] As a consequence, the appeal is struck out.Comment[10] While we hold that Mr Misiuk's application should not have been accepted for filing in the High Court, we do not consider that Registry staff should reject such an application without first placing it before a Judge who would need to confirm that s 15(1) of the Act applies.Solicitors:Crown Law Office, Wellington for Respondent