IRAIA ARANGA NGAMOTU BURTON v R [2019] NZSC 101

IRAIA ARANGA NGAMOTU BURTON v R [2019] NZSC 101 [23 September 2019]IN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 73/2019[2019] NZSC 101BETWEEN IRAIA ARANGA NGAMOTU BURTONApplicantAND THE QUEENRespondentCourt: Winkelmann CJ and Glazebrook JCounsel: Applicant in PersonR K Thomson for RespondentJudgment: 23 September 2019JUDGMENT OF THE COURTThe application for an extension of time is dismissed.____________________________________________________________________REASONSIntroduction[1] Mr Burton was convicted, after a Judge-alone trial (Judge Crosbie), of theburglary of a property at Lynn Street in Dunedin.1 He had been charged with fourburglaries (with alternative receiving charges to three of the burglaries), the unlawfultaking of a vehicle, and assault with intent to injure. He pleaded guilty (at varioustimes) to one of the burglary charges, to all of the receiving charges, to the unlawfultaking of a vehicle and to the assault charge. Apart from the Lynn Street burglarycharge, the other burglary charges were withdrawn.1 R v Burton [2017] NZDC 13558.[2] On 11 October 2018 the Court of Appeal dismissed Mr Burton's appeal againstthe Lynn Street burglary conviction.2 Mr Burton now applies for leave to appeal thatconviction to this Court.[3] The application for leave to appeal is some six months out of time. Mr Burtonsays that the delay was due to communication difficulties and we treat his submissionsas an application for an extension of time to apply for leave to appeal. The Crownmade no submissions on whether or not an extension of time should be granted.Parties' submissions[4] In Mr Burton's submission, the Lynn Street burglary conviction was based onpropensity reasoning alone and on the basis of evidence that was not relevant to theLynn Street charge but only to the other charges to which he had pleaded guilty. Hesays that his understanding, from what was said in Court and from his counsel, wasthat this evidence would not be relied on. Mr Burton submits that the other evidencecalled at trial did not support the conviction. He also seeks to put new evidence beforethe Court, including his bank statements and cell phone evidence, which he submitsshows that he had an alibi and that a miscarriage of justice has occurred.[5] The Crown submits that it is clear that the conviction was not based only onpropensity reasoning but on a range of other evidence.3 In addition, it is also clear thathis trial counsel had advised him that the evidence related to the other charges wouldlikely remain admissible as propensity evidence.4 The Crown also submits that theother evidence did support the conviction and that the new evidence Mr Burton seeksto rely on would have been available at the time of the trial (and is therefore not fresh).In any event it is submitted that the proposed new evidence does not show there wasa miscarriage of justice.2 Burton v R [2018] NZCA 355 (Kόs P, French and Miller JJ) [CA judgment].3 CA judgment at [9].4 CA judgment at [28].Our decision[6] The matters Mr Burton wishes to raise are all factual. No issue of general orpublic importance arises. Nor do we consider that the issues raised suggest any riskof a miscarriage of justice.[7] Any application for leave to appeal would therefore not be granted. In thesecircumstances there is no point in granting an extension of time to make the applicationfor leave to appeal.Result[8] The application for an extension of time is dismissed.Solicitors:Crown Law Office, Wellington for Respondent