Barton v Chief Executive, Department of Corrections

[2020] NZHC 1099

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2020-404-000686

[2020] NZHC 1099

UNDER

the Habeas Corpus Act 2001

IN THE MATTER

of an application for a writ of habeas corpus

BETWEEN

DAVID SIMON BARTON
Applicant

AND

CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS

Respondent

Hearing:	22 May 2020
Appearances:	Applicant in person (via AVL) RW Belcher for Respondent
Judgment:	25 May 2020

JUDGMENT OF DOWNS J

This judgment was delivered by me on Monday, 25 May 2020 at 10 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Auckland. Copy to: Applicant

BARTON v CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS [2020] NZHC 1099 [25 May 2020]

[1]        David Barton is in prison. He seeks a writ of habeas corpus. He contends his detention (in prison) is unlawful.

[2]        On 17 August 2018, Mr Barton was sentenced by Judge K G Glubb to 38 and a half months’ imprisonment. The Judge imposed this sentence as Mr Barton was found guilty of evading tax. Mr Barton appealed unsuccessfully to the Court of Appeal.1

[3]        I was given the warrant of commitment in relation to Mr Barton. It confirms Mr Barton’s sentence for the tax evasion offending, imposed 17 August 2018.2 It follows Mr Barton must persuade me his detention is unlawful.3

[4]        Mr Barton did not dispute the apparent legality of the warrant of commitment. Rather, Mr Barton argued the Judge had no power to imprison him. Indeed, Mr Barton argued no District Court Judge had the power  to  imprison  him—or anyone  else. Mr Barton argued s 19 of the District Court Act 2016 contained a “colossal mistake”. This section reads:

19   Powers of Judges

(1)   A Judge has the power—

(a)to exercise the civil and criminal jurisdiction of the court in accordance with his or her warrant of appointment; and

(b)if applicable, to exercise the jurisdiction conferred by a warrant to sit in the Family Court or to conduct jury trials, or conferred by a designation to sit in the Youth Court.

(2)   A Judge exercises the jurisdiction of the court by—

(a)hearing and determining proceedings in the court; and

(b)exercising the powers conferred by this Act or any other enactment on the court or Judges of the court.

(3)   Nothing in subsection (1) limits section 436 of the Oranga Tamariki Act 1989.

1      Barton v R [2019] NZCA 644.

2      Sentencing Act 2002, s 91.

3      Bennett v Superintendent, Rimutaka Prison [2002] 1 NZLR 616 at [70].

[5]        Mr Barton said absence of reference to a defendant or prisoner meant no District Court Judge could sentence anyone to imprisonment.

[6]        The argument is ambitious—and wrong. Section 19(1) confers civil and criminal jurisdiction to a District Court Judge in accordance with her or his warrant of appointment. So, for example, only a jury-warranted Judge may preside at a jury trial (incidentally, Judge Glubb has a jury warrant). Section 19(2) provides, unremarkably, a District Court Judge exercises the jurisdiction of that Court by hearing and determining proceedings in that Court and exercising the powers conferred by the District Court Act, or any other enactment on the Court or Judges of the Court. Many criminal offences carry a term of imprisonment as their penalty, including the offences Mr Barton committed. Judge Glubb exercised criminal jurisdiction when he sentenced Mr Barton to prison (just as the Judge did when he tried Mr Barton with a jury).

[7]        The Sentencing Act 2002 affirms this analysis. Section 81 of that Act provides if an offender is liable to imprisonment (whether for life or any specified term), the “Court” may impose imprisonment for the maximum term provided for the particular offence or any lesser term. Section 4(1) of the same Act defines “Court” as “any Court exercising jurisdiction in criminal cases”. Section 81B contains a mechanism if a District Court Judge is confronted with the prospect of imposing life imprisonment. In such a situation, that Court must transfer the offender to the High Court for sentence. These provisions would not exist unless a District Court Judge could imprison a defendant following conviction for a criminal offence.

[8]        Mr Barton also asked me to address an “ancillary matter”. He has a medical condition that need not be recorded. Mr Barton said he should be released from prison urgently so he could receive appropriate treatment. This argument is not a complaint about the legality of detention. It is therefore beyond the scope of the judgment. However, the Department of Corrections has a duty to ensure Mr Barton receives appropriate medical treatment. Mr Barton adduced no cogent evidence the Department has failed in this respect.

[9]        The application is dismissed. Mr Barton’s detention is lawful as he is serving a sentence of imprisonment that has not yet expired.

……………………………..

Downs J