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McKay v R

McKay v R

Case [2009] NZCA 378 26 August 2009

Mental Health

Fitness to Stand Trial

Appeal

Miscarriage of Justice

Criminal Law

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IN THE COURT OF APPEAL OF NEW ZEALAND
CA391/2008
[2009] NZCA 378
THE QUEEN
v
RICHARD HORTON MCKAY
Hearing:16 June 2009

Court:Chambers, MacKenzie and Simon France JJ
Counsel:R A A Weir and S Member for Appellant

M D Downs for Crown

Judgment:26 August 2009 at 3 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
REASONS OF THE COURT
(Given by Chambers J)
Table of Contents
Para No

Four robberies in four days  [1]
Issues on the appeal  [10]
Should Mr Eastwood’s memorandum have triggered the Subpart 1
           procedure?  [20]
           What was before the judge on 24 May 2007?  [25]
           What is needed to trigger the procedure?[33]
           Should the procedure have been triggered here?  [41]
What are the consequences of the judge’s failure to follow the
           Subpart 1 procedure?  [44]
Should Mr McKay’s election to represent himself have triggered a
           reappraisal of his fitness to stand trial?  [65]
Should events at the trial have triggered a reappraisal of Mr McKay’s
           fitness to stand trial?  [68]
Was the trial unfair?  [71]
Outcome of this appeal  [84]
What should trial judges do if a question of fitness to stand trial arises
           between the preliminary hearing and the trial?  [85]
When do ss 16 and 17 apply?  [99]
Four robberies in four days
[1]       Over four days in October 2005, four Auckland banks were robbed. The day after the final robbery, police identified Richard McKay, the appellant, as responsible. Police approached Mr McKay, but he refused to answer questions. He was then charged with the four robberies.
[2]       Following a preliminary hearing, Mr McKay was committed to trial. In the week prior to trial, Mr Eastwood, then Mr McKay’s counsel, filed a memorandum, dated 22 May 2007, in which he “gave notice of his intention to request the District Court appropriately to address the issue of the fitness of the accused to stand trial”.
[3]       The trial was due to start on 24 May. Judge Joyce QC, the trial judge, saw counsel and discussed at length Mr Eastwood’s memorandum, the matters raised in it, and other material relating to Mr McKay’s mental state which was available. In the end, the judge acceded to Mr Eastwood’s application that the trial be adjourned. The judge also decided he would get assessment reports from two psychiatrists in terms of ss 38 and 39 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The purpose of the reports was to assist the court to determine whether Mr McKay was unfit to stand trial and whether he was insane.
[4]       On 20 June, Judge Joyce saw counsel again. By that time he and counsel had received assessment reports from two psychiatrists, Dr Tyrone Burgess and Dr Sandy Simpson. In addition, Mr Eastwood had obtained his own psychiatric report from Dr Greig McCormick. Because neither the judge nor counsel had had time properly to consider the three reports, Judge Joyce adjourned the matter further, expressly reserving “the…

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 McKay v R

Details

AGLC: McKay v R [2009] NZCA 378
Case: [2009] NZCA 378
Decision Date: 26 August 2009

CaseChat Overview and Summary

The case of McKay v R involved Richard McKay, who was charged with four bank robberies committed over four days in Auckland in October 2005. The primary issues on appeal were whether the trial judge should have followed the Subpart 1 procedure set out in the Criminal Procedure (Mentally Impaired Persons) Act 2003 when assessing McKay's fitness to stand trial, and whether the trial itself was unfair. McKay's counsel, Mr Eastwood, had raised concerns about McKay's fitness to stand trial before the trial, but the trial judge did not follow the Subpart 1 procedure as prescribed. Instead, the judge ordered psychiatric reports and determined that McKay was fit to stand trial. McKay later dismissed his counsel and chose to represent himself during the trial. The Court of Appeal considered whether the failure to follow the Subpart 1 procedure constituted a miscarriage of justice or rendered the trial a nullity. The court concluded that the deviation from the procedure did not lead to a miscarriage of justice, as the judge ultimately reached the correct conclusion regarding McKay's fitness to stand trial. Furthermore, the court found that McKay's decision to represent himself did not necessitate a reappraisal of his fitness to stand trial. The trial was deemed fair as the judge took steps to ensure fairness, despite McKay's eccentric defense strategy. Ultimately, the appeal was dismissed.

Orders