Barton v The Queen - [2020] NZCA 45

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA534/2018
[2020] NZCA 45

BETWEEN	DAVID SIMON BARTON Appellant
AND	THE QUEEN Respondent

Court:	Cooper, Ellis and Peters JJ
Counsel:	Appellant in person R K Thomson for Respondent
Judgment: (On the papers)	9 March 2020 at 11 am

JUDGMENT OF THE COURT

The application for recall is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

By an email dated Friday 20 December 2019 Mr Barton advised the Court that counsel who acted for him at the hearing of this appeal, Mr Clee, had been instructed “to recall” the Court’s judgment dismissing his sentence appeal.[1] Nothing further has been heard from Mr Clee. The Crown has advised the registrar it is opposed to the recall application.
[1]Barton v R [2019] NZCA 644.
In his email of 20 December, Mr Barton states that the sole ground for the recall application relates to his medical condition. He says Mr Clee was not aware of the acute nature of a double hernia he has and consequently did not draw it to the attention of the Court. He claims that in the event of emergency surgery being required, the Department of Corrections would have “a maximum of 30 minutes and a minimum of 20 minutes” to remove him from his cell and transport him to the nearest hospital. He refers to a risk he would die in the event the hernias “strangulate” whilst he is in custody requiring emergency surgery.
Mr Barton continues:
Two senior auckland surgeons FRCAS are providing detailed Affidavits for the Learned Court which will leave Their Honours in no doubt what so ever returning to custody carries a high prospect of my mortality in the absence of emergency surgery.

He said that he was expecting to have the surgeons’ affidavits before the Court by “next monday”. No affidavits have been received.

On 20 February 2020 Mr Barton filed an urgent memorandum “clarifying proceedings”. He seemed to be under the impression that merely instructing counsel to seek recall of the judgment would achieve that outcome and that the judgment had already been recalled. Obviously that is incorrect. In the memorandum, he advised that he was seeking bail in the High Court at Auckland for the purpose of paying a sum of $241,000, which he described as the “balance core tax” owed to the Inland Revenue Department. He referred to payments that he had previously made in reduction of his taxation debt and actions taken to house and clothe homeless people. These matters were known to this Court at the time of the hearing of the appeal.
Mr Barton further advised that he was intending to seek recall of a High Court decision refusing him bail,[2] stating that if granted bail for six months he could pay his tax debts in full.
[2]Barton v Police [2020] NZHC 93.
In the District Court, Mr Barton was sentenced on a basis that took into account…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barton v The Queen

Details

AGLC: Barton v The Queen [2020] NZCA 45
Case: [2020] NZCA 45
Decision Date: 9 March 2020 at 11 am

CaseChat Overview and Summary

In Barton v The Queen, the appellant, David Simon Barton, sought a recall of the Court of Appeal's judgment dismissing his sentence appeal. The respondent, The Queen, opposed the application. The appeal was heard on the papers, and the Court of Appeal dismissed Barton's application for recall. The appeal presented a legal issue concerning the circumstances under which a judgment may be recalled. According to Lyon v R, a judgment might be recalled where there is a "fundamental error in procedure," a substantial miscarriage of justice if the error is not corrected, and no alternative effective remedy. Barton argued that the Court of Appeal had failed to consider his medical condition, which he claimed made it unsafe for him to be in prison. He further claimed that if he were released, he would be able to pay more of his debt to the Inland Revenue Department. The Court of Appeal found that Barton had not demonstrated any fundamental error in procedure or a substantial miscarriage of justice. The Court noted that Barton had not provided the promised medical evidence, and even if his claims were accurate, the prison authorities could take appropriate steps to deal with an emergency if it arose. The Court also noted that Barton had ample time to pay his debt to the Inland Revenue Department, and his release would not necessarily result in him paying more of the debt. As a result, the Court of Appeal declined Barton's application for recall.

Orders