Barton v Chief Executive, Department of Corrections [2021] NZCA 529 (13 October 2021)

Last Updated: 19 October 2021

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA516/2021 [2021] NZCA 529

	BETWEEN	DAVID SIMON BARTON Applicant
	AND	CHIEF EXECUTIVE, DEPARTMENT OF CORRECTIONS Respondent

Hearing:	5 October 2021
Court:	Brown, Collins and Cull JJ
Counsel:	Appellant in Person M B Smith for Respondent
Judgment:	13 October 2021 at 10.30 am

JUDGMENT OF THE COURT

The application for an extension of time to appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

• [1] Mr Barton’s application for a writ of habeas corpus was declined in a judgment dated 21 December 2020.^[1] On 27 July 2021 Mr Barton filed in this Court an application for an extension of time to appeal that judgment under r 29A of the Court of Appeal (Civil) Rules 2005. In light of a communication from Mr Barton noting that habeas corpus appeals assume priority over all other Court business, an urgent hearing was allocated for the hearing of both the r 29A leave application and the appeal itself.
• [2] However at the hearing on 5 October 2021 Mr Barton stated that he only wished to proceed at that time with the r 29A application. He was not in a position to proceed on the appeal itself. Consequently this judgment addresses only his application for an extension of time to appeal.

Relevant background

• [3] Following a jury trial in December 2017 in the District Court at Auckland, Mr Barton was convicted of 10 charges of knowingly failing to provide a tax return when required to do so, with the intention of evading the assessment or payment of tax.^[2] In August 2018 he was sentenced to three years, two months and two weeks’ imprisonment.^[3] He appealed against both his conviction and sentence. His appeal against conviction was abandoned on 5 March 2019. His appeal against sentence was dismissed by this Court on 13 December 2019 and an application to defer the commencement of sentence was declined.^[4]
• [4] Mr Barton’s first application for a writ of habeas corpus, advanced on the ground that the District Court Judge had no power to imprison him, was dismissed by Downs J on 25 May 2020 for the reason that Mr Barton’s detention was lawful as he was serving a sentence of imprisonment that had not yet expired.^[5]
• [5] A second application for habeas corpus resulted in the judgment which Mr Barton now seeks to appeal. The basis for that application was Mr Barton’s complaint that the Parole Board had failed to have regard to relevant considerations and had taken into account irrelevant considerations in refusing him parole. He argued that his continued detention was unlawful, citing s 7(2) of the Parole Act 2002, in particular because he claimed he presented no risk to public safety.
• [6] In declining the application, Jagose J explained:^[6]

[6] It is well-established dispute with a Parole Board determination is not effective to render the underlying detention unlawful. The sentence continues, even while on parole. Mr Barton’s remedy is his express right to review the Board’s decision under s 67 of the Parole Act 2002, and thereafter of judicial review of the Board’s decisions. That is the ‘appropriate procedure’ for considering his allegations.

[7] I was in any event satisfied, by examination of the District Court Judge’s warrant, Mr Barton remains detained under a valid warrant signed by the Judge.

(Footnotes omitted.)

• [7] At the conclusion of his judgment Jagose J noted that there was a judicial review proceeding in train for which a statement of claim was awaited and he directed that the documents in the habeas corpus application be included in the review file to avoid the need for duplication by Mr Barton while in custody. Mr Barton had earlier commenced judicial review proceedings in the High Court at Auckland in respect of processes and hearings related to two misconduct reports.
• [8] Following the dismissal of the second habeas corpus application, it appears that Mr Barton turned his attention to the review proceeding. Mr Barton joined the Parole Board as the twentieth respondent in that proceeding and the Board filed an appearance dated 28 January 2021 abiding the decision of the Court. However on 12 February 2021 Venning J made an order staying the review proceeding, to be lifted only when an amended pleading was filed approved by a High Court Judge. He directed that unless such approval was granted by 31 May 2021 the proceeding would be struck out.^[7]
• [9] Mr Barton filed an amended statement of claim on 31 May 2021. However in a minute dated 18 June 2021, van Bohemen J ordered that the proceeding be struck out because it was frivolous and vexatious and an abuse of process. The following month Mr Barton filed the current application.

The application for an extension of time to appeal

• [10] The grounds stated in Mr Barton’s application for an extension of time to appeal the judgment of Jagose J are:

(a) The Applicant believed the High Court would order an urgent hearing in the Judicial Review List which has not occurred to date some 6 months has elapsed.

(b) The Respondent Parole Board abides the decision of the Court.

(c) In light of this Courts recent judgement in CA230/2021 the Applicants appeal will take many months to reslove [sic] meantime High Court proceedings in 2020-404-1337 are struck out.

• [11] The reference to the Parole Board reflected the fact that Mr Barton’s application named the Parole Board along with the Chief Executive of the Department of Corrections as respondents. However the Parole Board was not a party to the High Court judgment. As Jagose J likewise recognised, the correct respondent is the Chief Executive of the Department of Corrections. This judgment is entituled accordingly.^[8]

Relevant principles

• [12] The principles applicable to applications for extensions of time under r 29A were explained by the Supreme Court in Almond v Read.^[9] The ultimate question when considering the exercise of the discretion is what the interests of justice require. Factors identified as likely to require consideration include:^[10]

(a) the length of the delay;

(b) the reasons for the delay;

(c) the conduct of the parties, particularly of the applicant;

(d) any prejudice or hardship to the respondent or to others with a legitimate interest in the outcome; and

(e) the significance of the issues raised by the proposed appeal, both to the parties and more generally.

• [13] The Supreme Court accepted that the merits of a proposed appeal may in principle be relevant to the exercise of the discretion to extend time. However the qualifications to that principle included:^[11]

Accordingly, a decision to refuse an extension of time based substantially on the lack of merit of a proposed appeal should be made only where the appeal is clearly hopeless. An appeal would be hopeless, for example, where, on facts to which there is no challenge, it could not possibly succeed, where the court lacks jurisdiction, where there is an abuse of process (such as a collateral attack on issues finally determined in other proceedings) or where the appeal is frivolous or vexatious. The lack of merit must be readily apparent. The power to grant or refuse an extension of time should not be used as a mechanism to dismiss apparently weak appeals summarily.

Analysis

• [14] Mr Barton’s delay in seeking to pursue an appeal was modest. The delay came about because Mr Barton proceeded in accordance with the plainly correct intimation in the judgment as to the appropriate procedure for the pursuit of his complaint about the Parole Board’s decision. It is apparent from the grounds in his application and also from the various papers which he has filed that his decision to revert to a challenge to the second habeas corpus judgment was the result of his dissatisfaction with the course which the judicial review proceeding had taken. Indeed the respondent submitted that Mr Barton is endeavouring to use his application for a writ of habeas corpus and the subsequent appeal to influence or support his judicial review proceeding, a course described as a misuse of the habeas corpus procedure.
• [15] Mr Barton placed reliance on dicta in Manuel v Superintendent of Hawkes Bay Regional Prison where this Court observed that there may not be a bright line which distinguishes between arguments available on habeas corpus applications and those which can only be deployed in judicial review proceedings.^[12] In that case an application for habeas corpus challenging a recall to prison from parole was dismissed. Significantly the Court observed that it will be a rare case where the habeas corpus procedures will permit the Court to enquire into challenges on administrative law grounds to decisions which lie upstream of apparently regular warrants.
• [16] In this case Jagose J was satisfied by examination of the District Court Judge’s warrant that Mr Barton was detained under a valid warrant signed by the Judge. The dismissal of the application for habeas corpus in those circumstances was plainly correct. Mr Barton’s belated attempt to appeal that decision, irrespective of its motivation, is clearly hopeless. For that reason his application for an extension of time to appeal under r 29A must be declined.

Result

• [17] The application for an extension of time to appeal is declined.

Solicitors:
Crown Solicitor, Whangārei for Respondent

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^[1] Barton v Chief Executive, Department of Corrections [2020] NZHC 3476.

^[2] Tax Administration Act 1994, s 143B(1)(b) and (f).

^[3] R v Barton [2018] NZDC 17502.

^[4] Barton v R [2019] NZCA 644.

^[5] Barton v Chief Executive, Department of Corrections [2020] NZHC 1099.

^[6] Barton v Chief Executive, Department of Corrections, above n 1.

^[7] Barton v Chief Executive, Department of Corrections [2021] NZHC 152. Mr Barton’s application under r 29A for an extension of time to appeal the judgment was granted: Barton v Chief Executive of the Department of Corrections [2021] NZCA 328.

^[8] Barton v Chief Executive, Department of Corrections, above n 1, at [2].

^[9] Almond v Read [2017] NZSC 80, [2017] 1 NZLR 801.

^[10] At [38].

^[11] At [39(c)].

^[12] Manuel v Superintendent of Hawkes Bay Regional Prison [2005] 1 NZLR 161 (CA) at [49].