McMichael v Attorney-General - [2024] NZHC 391

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV 2021-485-729

[2024] NZHC 391

UNDER The New Zealand Bill of Rights Act 1990 and the Declaratory Judgments Act 1908

BETWEEN

BRENDON MURRAY MCMICHAEL

Plaintiff

AND

THE ATTORNEY-GENERAL (sued on behalf of THE MINISTER OF HEALTH)

Defendant

Hearing: 24 July 2023

Appearances:

C J Nicholls for the plaintiff F F Nizam for the defendant

Judgment:

29 February 2024

JUDGMENT OF CAMPBELL J

This judgment was delivered by me on 29 February 2024 at 4.00 pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

MCMICHAEL v THE ATTORNEY-GENERAL (sued on behalf of THE MINISTER OF HEALTH) [2024]
NZHC 391 [29 February 2024]

[1] Mr McMichael faced two sets of criminal charges. On each set of charges, the court ordered, under s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act), that health assessors report on whether Mr McMichael was unfit to stand trial. Mr McMichael claims that, as a result of delays in the completion of the s 38 reports, his right in s 25(b) of the New Zealand Bill of Rights Act 1990 (the Bill of Rights) to be tried without undue delay was breached.

[2] In respect of the second set of charges, Mr McMichael also claims that for six days he was remanded in custody when he should have been detained in a mental health hospital. He says his remand in custody occurred only because there was no hospital bed available. He says this breached his right, in s 23(5) of the Bill of Rights, to be treated (while deprived of his liberty) with humanity and with respect for the inherent dignity of the person.

[3] Mr McMichael seeks compensatory and exemplary damages from the Attorney-General (sued on behalf of the Minister of Health) for these alleged breaches of the Bill of Rights and seeks declarations that the Minister breached his rights. The Attorney-General says no breaches occurred or that, if they did, declaratory relief is sufficient to vindicate any rights that were breached.

Outline of Mr McMichael’s claims

[4] Mr McMichael lives in the Wellington region. In June 2021 (when the first criminal proceeding commenced) he was 46 years old. By that time, he had a diagnosed mental health condition that was known to forensic mental health services. He also had a lengthy criminal history. It is common ground that, given his criminal and mental health history, he was not a good candidate for bail, particularly when unwell.

First set of charges

[5] The first set of charges was for alleged offending in June 2021. There were fourteen charges, for using obscene language, resisting Police, disorderly behaviour, unlawfully being in a building, shoplifting, intentional damage, wilful damage, assault, possessing a knife in public, threatening behaviour, and threatening to kill.

[6] Mr McMichael was initially granted bail but was then remanded in custody on 1 July 2021. On about…

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 McMichael v Attorney-General

Details

AGLC: McMichael v Attorney-General [2024] NZHC 391
Case: [2024] NZHC 391
Decision Date: 29 February 2024

CaseChat Overview and Summary

In McMichael v Attorney-General, the plaintiff, Brendon Murray McMichael, sought compensatory and exemplary damages from the Attorney-General on behalf of the Minister of Health, alleging breaches of his rights under the New Zealand Bill of Rights Act 1990 (the Bill of Rights). McMichael argued that delays in preparing health assessment reports under section 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act) caused undue delays in trying his criminal charges, breaching his right to be tried without undue delay under section 25(b) of the Bill of Rights. Additionally, McMichael claimed that his detention in prison for six days, despite recommendations for hospital treatment, breached his right to be treated with humanity and respect for his inherent dignity under section 23(5) of the Bill of Rights. The court found that the delays in preparing the health assessment reports were largely due to McMichael's refusal to engage with health professionals and extraneous factors such as COVID-19, rather than any fault of the Ministry of Health. Consequently, the court held that there was no undue delay in trying McMichael's charges and no breach of his right to be tried without undue delay. Regarding the six-day detention in prison, the court concluded that it did not constitute a breach of McMichael's right to be treated with humanity and respect for his inherent dignity, as it was not a clear departure from what might reasonably be expected given the circumstances. The court dismissed McMichael's claims in their entirety.

Orders