Barton v The Queen
[2020] NZCA 45
•9 March 2020 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA534/2018 [2020] NZCA 45 |
| BETWEEN | DAVID SIMON BARTON |
| AND | THE QUEEN |
| Court: | Cooper, Ellis and Peters JJ |
Counsel: | Appellant in person |
Judgment: | 9 March 2020 at 11 am |
JUDGMENT OF THE COURT
The application for recall is declined.
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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 a reparation payment already made of $43,000, and a further promised sum of $37,000.[3] This Court’s judgment of 13 December 2019 referred to a further $122,000 having been remitted by third parties, on Mr Barton’s behalf, to the Commissioner. We noted however that Mr Barton did not pay the $37,000 that he promised to pay in the District Court and that if the Commissioner received most of the $122,000 there would be a balance of $235,000 core tax outstanding.[4] We saw no reason to disturb the sentence imposed in the District Court.
[3]R v Barton [2018] NZDC 17502 at [13].
[4]Barton v R, above n 1, at [6]–[8].
In Lyon v R this Court discussed the circumstances in which judgment might be recalled.[5] Thus, a judgment might be recalled where there is a “fundamental error in procedure”, there would be a substantial miscarriage of justice if the error was not corrected and there was no alternative effective remedy.[6]
[5]Lyon v R [2019] NZCA 311, [2019] 3 NZLR 421.
[6]Lyon v R, at [27], citing R v Smith [2003] 3 NZLR 617 (CA) at [36].
We do not consider there has been any “fundamental error in procedure” of the kind referred to in Lyon v R. It follows that there cannot be a substantial miscarriage of justice if such error is not corrected. In the circumstances this is not a case where reference needs to be made to possible alternative remedies, but we note in the meantime that Mr Barton has sought leave to appeal to the Supreme Court.
We see nothing justifying recall in the fact that Mr Barton claims that he is suffering from a medical condition making it unsafe for him to be in prison. Assuming that Mr Barton’s self-reported double hernia claim is correct (and the promised medical evidence has not been provided) we see no reason why, assuming the prison authorities have been made aware of the danger, appropriate steps would not be able to be taken to deal with an emergency if it arose.
As to Mr Barton’s claim that, if he were released, he would be able to pay more of his debt to the Inland Revenue Department, we note that the debt in question relates to the tax years between 31 March 2008 and 31 March 2017.[7] There has been ample time for the debt to be paid.
[7]Barton v R, above n 1, at [1].
We see no miscarriage of justice in all the circumstances.
We can discern no basis for recalling our judgment, and the application for recall is declined.
Solicitors:
Crown Law Office, Wellington for Respondent