VAISEVURAKI v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 801

VAISEVURAKI v CHIEF EXECUTIVE OF THE DEPARTMENT OF CORRECTIONS [2020] NZHC 801 [23April 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECIV-2020-485-163[2020] NZHC 801IN THE MATTER of an application pursuant to the HabeasCorpus Act 2001BETWEEN SAMUEL VAISEVURAKIPlaintiffAND THE CHIEF EXECUTIVE OF THEDEPARTMENT OF CORRECTIONSDefendantHearing: 23 April 2020Counsel: C G Tuck and T D A Harré for PlaintiffJ A Herring for DefendantJudgment: 23 April 2020JUDGMENT OF ELLIS J[1] Mr Vaisevuraki is presently in jail in New Zealand, awaiting trial on seriousdrugs charges. He was extradited from Australia (his home) last year.[2] Mr Vaisevuraki now applies for writ of habeas corpus on the basis that theinitial warrant for his arrest signed on 10 April 2019 by Judge C M Ryan in the DistrictCourt was unlawful. The warrant was purportedly issued pursuant to s 34 of theCriminal Procedure Act 2011 (CPA). But because no prior summons had been issued,Mr Vaisevuraki says there was no jurisdiction under s 34.[3] Before turning to consider the lawfulness of Mr Vaisevuraki's detention, it isnecessary to outline the events leading, and subsequent, to his arrest.Background[4] As a result of a 2018 investigation, codenamed Operation Nova, Police formedthe view that Mr Vuisevuraki had been involved in serious Class A drug offending.Police resolved to, and subsequently did, charge him with:(a) four charges of importing a class A controlled drug(methamphetamine);(b) two charges of conspiracy to supply a class A controlled drug(methamphetamine); and(c) one charge of supplying a class A controlled drug (methamphetamine).Arrest warrant issued by Judge C M Ryan[5] On 10 April 2019 Detective Sergeant Espinosa applied to the District Courtfor an arrest warrant. In his affidavit in support of the application, he said:It is not possible to serve Samuel with a summons the service of summonswould require a mutual assistance request under the Mutual Assistance inCriminal Matters Act 1992; and if the summonses were to be served it wouldlikely result in Samuel fleeing to a country that has no extraditionarrangements with New Zealand.[6] Later in his affidavit Detective Sergeant Espinosa stated that he asked that "awarrant to arrest for Samuel be issued under section 34 of the Criminal ProcedureAct".[7] I interrupt the narrative at this point to note that s 34 provides:34 Warrant may be issued if summons cannot be served(1) This section applies if a charging document has been filed and asummons has been issued under section 28, 29, or 33 that has not beenserved on the defendant.(2) If the summons relates to a category 1 offence, a District Court Judgemay issue a warrant to arrest the defendant and bring him or her beforethe District Court if the Judge is satisfied that reasonable efforts havebeen made to serve the summons on the defendant.(3) If the summons relates to a category 2, 3, or 4 offence, a judicialofficer or Registrar may issue a warrant to arrest the defendant andbring him or her before the District Court if the judicial officer orRegistrar is satisfied that reasonable efforts have been made to servethe summons on the defendant.[8] It is not in dispute that Mr Vaisevuraki had not previously been served with asummons, or that no efforts had been made to serve him with one, for the reasonsgiven by Detective Sergeant Espinosa.[9] Judge C M Ryan signed and issued a warrant for Mr Vaisevuraki's arrest on10 June. The warrant states that it was issued pursuant to s 34.1Subsequent events[10] Mr Vaisevuraki was arrested in Sydney on 12 April 2019 on the basis of aprovisional arrest warrant issued by Magistrate Kennedy, dated 11 April 2019. Iassume (but in the time available cannot be sure) that was pursuant to the expeditedextradition procedures in place between Australia and New Zealand and that it wasbased on Judge Ryan's warrant.[11] On 13 April 2019, Mr Vaisevuraki attended the Parramatta local court and wasremanded in custody.[12] On 5 June 2019, he was taken from Parklea prison by Detective Paul King, andDetective Sergeant Damien Espinosa of the New Zealand Police and escorted toSydney International Airport. He departed Sydney for Auckland on an Air NewZealand flight at 7.30 pm that evening, landing just after midnight the next day.[13] Detective King then gave Mr Vaisevuraki his rights and arrested him, pursuantto Judge Ryan's warrant.[14] On 6 June Mr Vaisevuraki made his first appearance in the Auckland DistrictCourt. He was remanded in custody by Judge Thomas who adjourned the matter untilthe next day. On 7 June, Mr Vaisevuraki duly appeared again in the Auckland District1 Rule 3.4 of the Criminal Procedure Rules 2012 requires that an arrest warrant specify the sectionof the enactment under which it is issued.Court. Bail was declined by Judge Sharp. He was remanded in custody until 3 July2019.[15] From that time onwards, Mr Vaisevuraki has made many appearances in boththe High Court and the District Court. There have been multiple warrants issued forhis continued detention issued by the Courts—most recently on 21 April 2020 byJudge B Gibson in the Auckland District Court.The application for habeas corpus[16] There is, of course, no issue that Mr Vaisevuraki is presently detained. Theonly question is the lawfulness of that detention. The onus is on the Chief Executiveto satisfy the Court of that.2[17] It is not disputed that s 34 was not the relevant authorisation for the arrestwarrant here. As I have said, no prior attempts—reasonable or otherwise—had beenmade to issue or serve Mr Vaisevuraki with a summons, for good reason. But that factalone that does not suffice to render Mr Vaisevuraki's continued detention unlawful.That is the question I consider below.[18] It seems clear that although s 34 did not authorise the issuing of a warrant inthe circumstances of Mr Vaisevuraki's case, a warrant could have been issued unders 34A of the CPA, which provides:34A When warrant may be issued irrespective of whether summons hasbeen issued or served(1) This section applies if a charging document has been filed for acategory 2, 3, or 4 offence, whether or not a summons has been issuedor served.(2) A judicial officer or Registrar may issue a warrant to arrest thedefendant and bring him or her before the District Court if the judicialofficer or Registrar is satisfied that—(a) a warrant is necessary to compel the attendance of thedefendant (for example, because the location of the defendantis unknown); or2 Habeas Corpus Act 2001, s 14(1).(b) having regard to the gravity of the alleged offence and thecircumstances of the case, a warrant is desirable to compel theattendance of the defendant.[19] Section 34A was inserted into the CPA in 2018 and came into force on14 November that year, some six months prior to Mr Vaisevuraki's arrest. AsMr Herring pointed out, the learned authors of Adams on Criminal Law state that theamendment responded:3 to the concern that service of a summons before a warrant may be issued,as required by s 34, may sometimes be an unnecessary or impractical first step.This includes, for example, where Police are seeking to extradite a personfrom overseas for a prosecution commenced in New Zealand or where thePolice do not know the defendant's location.[20] In the end I did not understand counsel for Mr Vaisevuraki to dispute that s 34Ais, therefore, aimed precisely at cases such as Mr Vaisevuraki's. And Mr Herringsubmits that the availability of s 34A—the fact that there might have been a lawfulbasis for the issue of the warrant—suffices to rebut the attack on the warrant actuallyissued. Mr Harré submitted, however, that the existence of the clear legal pathwayoffered by s 34A made the error here more egregious and more fundamental.[21] The correctness of Mr Herring's submission turns firstly, I think, on whetherthe error here is one that would be saved by s 379 of the CPA, which relevantlyprovides:379 Proceedings not to be questioned for want of formNo warrant may be dismissed, set aside, or held invalid by any court byreason only of any defect, irregularity, omission, or want of form unless thecourt is satisfied that there has been a miscarriage of justice.[22] As just noted, Mr Harré submitted here that the error was so fundamental thats 379 could not apply. And he said that there has been a miscarriage of justice here—in the form of Mr Vaisevuraki's initial detention for six or so weeks in Australia as aresult of the erroneous warrant and then his continued detention here, pursuant toconsecutive warrants made on each adjournment of the proceeding—none of which3 Adams on Criminal Law, online edition at [CPA34A.001], citing the Explanatory Note to theamending Bill.could (in a factual sense) have been issued had it not been for his original (andunauthorised) arrest.[23] Mr Harré also referred me to the case of R v Hartley where the Court of Appealconsidered (amongst other things) whether there was jurisdiction to commit adefendant for trial in circumstances where he had been illegally brought back to NewZealand by police.4 Relying on R v O/C Depot Battalion, RASC, Colchester, ex parteElliott,5 the Court held that, although the relevant defendant (Mr Bennett) had beenunlawfully returned, the Court retained jurisdiction to try him because he hadsubsequently been lawfully arrested within New Zealand and, by due process of law,brought before the Court. The Court nonetheless noted that where there was evidenceof improper dealings by the authorities, the Court had a discretion to dischargeMr Bennett under either s 347(3) of the Crimes Act 1961 (as it then was) or its inherentjurisdiction to prevent abuse of its own process. The Court observed that this was acase in which—if asked to exercise his discretion on that ground—the trial Judgewould probably have been justified in doing so.[24] Mr Harré submitted that—by contrast with Mr Bennett's case—Mr Vaisevuraki's arrest in New Zealand was also based on the erroneous and (he said)invalid warrant.[25] The only other decision of which I am aware which may have a direct bearingon the present issue is that of John Hansen J in the context of the long-running sagainvolving the extradition of Mr Martin Mailley. Neither John Hansen J's decision norany citation for it seems readily available but it was summarised by the Court ofAppeal in The General Manager of Auckland Central Remand Prison v Mailley.6There, the Court said:[13] In his application, dated 12 December 2008, for the writ of habeascorpus eventually granted Mr Mailley contended that both the endorsedwarrant, and the warrants issued successively afterwards, were nullities. Theprincipal deficiencies in the warrants of detention, which became the point of4 R v Hartley [1978] 2 NZLR 199 (CA). The unlawfulness lay in the warrantless arrest of MrBennett by an off-duty police officer in Australia.5 R v O/C Depot Battalion, RASC, Colchester, ex parte Elliott [1949] 1 All ER 373.6 The General Manager of Auckland Central Remand Prison v Mailley [2009] NZCA 314. TheCourt of Appeal was considering the question of costs, not the merits of the habeas corpusdecision.focus for John Hansen J, were that they relied wrongly on ss 26(1)(a), 28(2)and 46(1)(a) of the Extradition Act, they referred incorrectly to s 18 and theymisdescribed the endorsed Queensland warrant as a provisional warrant issuedunder s 42. There was also an inaccuracy as to a date. Those deficiencies apart,Mr Ellis on Mr Mailley's behalf, mounted a wide ranging attack on thosewarrants and the endorsed warrant on at least three other fronts.[26] After describing the nature of the various other "attacks" mounted by Mr Ellis,the Court went on:[15] Counsel appearing for the General Manager, contended in replythat it was only the consequence of the conceded deficiencies in the successivewarrants of detention that was 'properly susceptible to fair and sensiblesummary determination'. It was argued that the other points taken werebeyond the scope of that application, and to be advanced rather by appeal orreview: Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1NZLR 161 at [47] – [52] (CA) (Manuel (No 1).[16] As to the single issue on which counsel for the General Manager didreply, she submitted that there could be no question that the judges who issuedthe warrants had both the power and the grounds to do so. The warrantsthemselves, she submitted, were merely administrative. Any errors theycontained were merely formal and were explicable, as there was no fullydefinitive prescribed form. The errors gave rise to no injustice and werecapable of cure under s 204 of the Summary Proceedings Act 1957.7[17] In granting the writ, John Hansen J accepted that last submission tothis extent. He confined himself to the significance of the errors on the face ofthe 10 December 2008 warrant, and, implicitly, those in the warrantspreceding. He did not, however, see any basis to go behind any of thosewarrants. They were, he held, the only record of any decision the issuingJudges had made. Their decisions stood or fell with the warrants. He regardedthe errors in the last warrant, and those preceding, to be more than merelyerrors of form. He considered them all to be 'seriously flawed'. That in itself,he said, created a significant miscarriage of justice. It was the responsibilityof the judges, who issued those warrants, to ensure that they reflected thedecisions they had made.[27] I make the following observations.[28] First, the decision in Hartley—and the specific case of Mr Bennett—did notinvolve an application for a writ of habeas corpus. The decision suggests thatMr Bennett's (and so Mr Vaisevuraki's) potential remedies lie elsewhere. Indeed, Inote that Mr Harré confirmed that Mr Vaisevuraki is bringing a separate challenge tothe extradition process.7 Section 204 of the Summary Proceedings Act has since been replaced by s 379 of the CPA.[29] Secondly, and in terms of the lawfulness of Mr Vaisevuraki's arrest on arrivalin New Zealand,8 my provisional view is that the defect in the original warrant wouldbe capable of cure under s 369 because:(a) unlike in Mailley there was only one error in the warrant (apart from aspelling mistake and the outdated reference to an indictment), namelythe reference to s 34 rather than s 34A;(b) s 34A was the obvious alternative provision and it would (in my view)have authorised the arrest, based on the grounds put forward byDetective Sergeant Espinosa in his affidavit; and(c) there was no prospect of the error misleading Mr Vaisevuraki in anymaterial way—the warrant made it clear that he was being arrestedbecause he had been charged with multiple, serious, drug offences,which were set out in the warrant.[30] But thirdly, and more importantly, Mr Vaisevuraki's detention is presentlyauthorised by a warrant issued by the District Court just two days ago. As the Courtof Appeal said in Misiuk v Chief Executive of the Department of Corrections:9 the relevant date to consider an application for habeas corpus is at the dateof hearing of the application. Irrespective of whether there may have beensome prior deficiency in the lawfulness of the applicant's detention, if he orshe is lawfully detained at the date of hearing there is no basis upon which theapplication may be granted.[31] And here, there is no error on the face of Judge Gibson's warrant or those otherCourt warrants that preceded it. That is the crucial distinction between this case andMr Mailley's. And I agree with John Hansen J that there is no basis—in a habeascorpus context—for going behind warrants which are correct on their face. Any such"going behind" should be pursued in judicial review proceedings.108 Which was found to be the curative act in Mr Bennett's case.9 Misiuk v Chief Executive of the Department of Corrections [2010] NZCA 480, [2011] 2 NZLR114 at [25]. This approach was expressly endorsed by the Supreme Court (refusing leave) inMisiuk v The Chief Executive of the Department of Corrections [2010] NZSC 140.10 Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 at [47] - [52] (CA)(Manuel (No 1).Conclusion[32] Mr Vaisevuraki's present detention is lawful. The application for a writ ofhabeas corpus is declined accordingly.[33] I thank all counsel for the helpful submissions._____________________Rebecca Ellis J