McMichael v Attorney-General
[2024] NZHC 391
•29 February 2024
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 22 July 2021, a District Court Judge ordered that health assessors prepare two assessment reports on Mr McMichael under s 38(1) of the CPMIP Act and further remanded Mr McMichael in custody. The purpose of the reports was, among other things, to assist the Court to determine whether Mr McMichael was unfit to stand trial.
[7] The first of the s 38 reports was submitted to the Court on 6 October 2021. That report concluded that Mr McMichael was fit to stand trial.
[8] By 25 November 2021, the second of the reports remained outstanding. When Mr McMichael appeared in Court that day, he had been in custody for almost five months. Mr McMichael wished to enter a guilty plea and be sentenced immediately, but he could not do so until the s 38 process was completed. The District Court Judge did, however, grant Mr McMichael bail, finding that if he were to be sentenced to imprisonment, it would be for a period for which he had already served time.
[9] The second s 38 report was not submitted until 11 January 2022. That report also found that Mr McMichael was fit to stand trial. That day, Mr McMichael appeared in Court, pleaded guilty to the charges and was sentenced to four months’ imprisonment. He was immediately released as he was time served.
[10] Mr McMichael claims that a failure by the Minister of Health to ensure that sufficient forensic mental health services were available meant that there were delays in preparing the s 38 reports. He says those delays, in turn, unduly delayed the finalisation of his criminal case, in breach of his right in s 25(b) of the Bill of Rights to be tried without undue delay. He claims compensatory damages for the extra time in custody caused by the delays and seeks a declaration that the Minister breached his right under s 25(b).1
1 Mr McMichael’s first cause of action is for compensatory damages for the delays in trying the first set of charges. His third cause of action is for a declaration in respect of the delays in trying both the first and second set of charges.
Second set of charges
[11] The second set of criminal charges was for alleged offending from February to April 2022. Mr McMichael was charged with wilful damage, being unlawfully in a building, disorderly behaviour, assault with a blunt instrument, and threatening to kill.
[12] On 11 April 2022, a District Court Judge ordered that health assessors prepare two assessment reports on Mr McMichael under s 38(1) of the CPMIP Act and remanded Mr McMichael in custody. The purpose of the reports was, among other things, to assist the Court to determine whether Mr McMichael was unfit to stand trial.
[13] At his next appearance, on 10 May 2022, Mr McMichael applied for a dismissal of the charges on the grounds that the s 38 reports had not been prepared. The Court declined the application and declined to grant bail to Mr McMichael.
[14] The first of the s 38 reports was submitted to the Court on 23 June 2022. The report concluded that Mr McMichael was unfit to stand trial.
[15] The second s 38 report was not submitted until 15 September 2022. It also opined that Mr McMichael was unfit to stand trial.
[16] Mr McMichael next appeared in Court on 28 September 2022. Although there was no dispute that Mr McMichael was unfit to stand trial, the District Court Judge postponed, under s 8(1) of the CPMIP Act, making a finding of unfitness to stand trial. The Judge reasoned it was not in Mr McMichael’s best interests to make such a finding where there was no hospital bed presently available to accommodate him. Mr McMichael was remanded in custody until 4 October 2022.
[17] Mr McMichael returned to Court on 4 October 2022. By then a hospital bed was available. The Court found that Mr McMichael was unfit to stand trial and that he had been involved in the offending. The Judge ordered that inquiries be made to determine the most suitable method of dealing with Mr McMichael and remanded Mr McMichael to a secure hospital for those inquiries to be undertaken.
[18] As he did in respect of the first set of charges, Mr McMichael claims that a failure by the Minister of Health to ensure that sufficient forensic mental health services were available meant there were delays in preparing the s 38 reports and, in turn, undue delays in trying him on these charges, in breach of s 25(b) of the Bill of Rights. He claims both compensatory damages and exemplary damages (saying that the Minister’s failure amounted to a high-handed disregard of his rights) and seeks a declaration that the Minister breached s 25(b).2
[19] As a discrete claim, Mr McMichael also says there was a failure by the Minister to ensure that sufficient forensic beds were available, which meant he remained in prison from 28 September 2022 to 4 October 2022, notwithstanding it had been recommended that he needed mental health treatment in hospital. Mr McMichael says his detention in prison without such treatment was inhumane and disrespectful to his dignity as a person, in breach of s 23(5) of the Bill of Rights. He seeks damages and a declaration.
The issues
[20] There are three issues that are common to each set of charges. The first issue is whether the time it took to prepare the s 38 reports meant there was undue delay in trying Mr McMichael, in breach of s 25(b) of the Bill of Rights. If there was a breach, the second issue is whether the Minister is responsible for the breach. If the Minister was responsible, the third issue is whether damages should be awarded to compensate Mr McMichael (and, on the second set of charges, whether exemplary damages should be awarded), or whether a declaration would be a sufficient remedy.
[21] Additional issues arise on the second set of charges in relation to Mr McMichael’s claim of a breach of s 23(5). The first issue is whether his detention in prison from 28 September to 4 October 2022, without the recommended mental health treatment in hospital, was inhumane and disrespectful to his dignity as a person and therefore in breach of s 23(5). If there was a breach, the second issue is whether the Minister is responsible for the breach. If the Minister was responsible, the final issue
2 Mr McMichael’s second cause of action is for compensatory and exemplary damages for the delays in trying the second set of charges. As noted earlier, his third cause of action is for a declaration in respect of the delays in trying both the first and second set of charges.
is whether damages should be awarded to compensate Mr McMichael, or whether a declaration would be a sufficient remedy.
Did the time it took to prepare the s 38 reports mean there was undue delay in trying Mr McMichael?
The law on undue delay
[22] Section 25(b) of the Bill of Rights provides that everyone who is charged with an offence has, in relation to the determination of the charge, various “minimum rights”, including “the right to be tried without undue delay”.
[23] There was no dispute as to the law relating to this right. In R v Williams, the Supreme Court said:3
[11] In an earlier decision of the Court of Appeal, Martin v Tauranga District Court Cooke P and McKay J had adopted the approach of the Supreme Court of Canada in R v Morin. That approach is to look at a range of factors, including the length of the overall delay, any waiver of time periods, the reasons for the delay (including time requirements, actions of the accused and the Crown, limits on institutional resources and any other reasons) and prejudice to the accused. It is important, however, to emphasise that there can be undue delay and a breach of that right without there being any prejudice to a fair trial. That is one of the reasons why, as we will mention again when considering the question of remedy, a stay is neither a mandatory nor a usual remedy for undue delay.
[12] Whether there has been undue delay in a particular case is a function of time, cause and circumstance. Undue in this context is synonymous with unjustifiable. … Whether delay is attributable to the courts or to the prosecution is irrelevant to the determination of the question of excessive delay, but may be relevant in assessing the validity of any explanation for the delay and (if necessary) what remedy should be granted.
An overview of s 38 of the CPMIP Act and the Maaka-Wanahi decisions
[24] In order to assess whether the time taken to complete the s 38 reports meant there was undue delay in trying Mr McMichael, it is first necessary to say something about the scheme of s 38 of the CPMIP Act and recent decisions on it.
3 R v Williams [2009] NZSC 41, [2009] 2 NZLR 750.
[25] In criminal proceedings, courts regularly have to determine issues relating to the mental health of a defendant. Most commonly, the issue is whether the defendant is unfit to stand trial or was insane at the time of the alleged offending. To assist courts with such determinations, s 38(1) of the CPMIP Act empowers courts to order a “health assessor” to prepare an assessment report on those issues. If a court orders such an assessment report, the court may also, under s 38(2), order that the defendant be detained for the purpose of the assessment. Section 38(2) provides that the period of detention may not exceed 14 days. Under s 40 that period may, with the defendant’s consent, be extended to 30 days.
[26] Under the CPMIP Act, a “health assessor” means (in the context of mental health issues) a psychiatrist or a psychologist. At least until recently, courts would make orders under s 38 without addressing them to a named health assessor. The courts would generally then send the orders to the local forensic mental health service. Forensic mental health services were part of the various District Health Boards (DHBs) until the disestablishment of DHBs on 1 July 2022. Since then, those services have been part of Te Whatu Ora – Health New Zealand (TWO).
[27] In recent years, there have been concerns about the time taken to prepare assessment reports ordered under s 38. The reports were regularly submitted well after the maximum period for which a defendant could be detained under ss 38(2) and 40 for the purpose of assessment. A question therefore arose as to what time limit, if any, governed the preparation of an assessment report ordered under s 38. Coupled with that, a question arose as to the obligations of TWO to prepare an assessment report where the court’s s 38 order was not addressed to a named health assessor.
[28] These questions, and others, were addressed by the High Court in Maaka- Wanahi v Attorney-General.4 In a judgment delivered in February 2023 (after all relevant events in Mr McMichael’s two criminal proceedings), McQueen J found that:
(a)The time limits in ss 38(2) and 40 relate to the period for which a defendant may be detained for the purpose of assessment. Those
4 Maaka-Wanahi v Attorney-General [2023] NZHC 187; appeal dismissed Maaka-Wanahi v Attorney-General [2023] NZCA 217.
provisions do not set a time limit for preparing the s 38 report and sending it to the court. However, such a report must be provided without undue delay or there may be a breach of a defendant’s rights under the Bill of Rights.5
(b)TWO6 is not a “health assessor”. When TWO receives a s 38 order addressed to an unnamed health assessor, TWO is not obliged to prepare an assessment report nor to locate and commission a health assessor to complete a report.7
[29] Mr Maaka-Wanahi appealed from the first finding. The Court of Appeal dismissed Mr Maaka-Wanahi’s appeal, saying that McQueen J’s finding was “clearly correct”.8 No party appealed from the second finding.9
[30] In the course of their judgments, McQueen J and the Court of Appeal noted that in recent years there had been an increase in the awareness of the implications of poor mental health for defendants in criminal proceedings. This had led to an increase in the number of s 38 reports ordered by the courts. At the same time, a shortage of psychiatrists and psychologists in New Zealand and worldwide had developed, a shortage exacerbated by the COVID-19 pandemic. The result was that s 38 reports were increasingly delayed.
What happened on the first set of charges?
[31] I now set out, in more detail, relevant events in the disposition of the first set of charges against Mr McMichael. Evidence of these events (and of those that related to the second set of charges) came primarily from court transcripts and decisions, from correspondence, and from extensive notes made by doctors and nurses who dealt with Mr McMichael during the course of his criminal proceedings. Both parties relied on
5 Maaka-Wanahi v Attorney-General [2023] NZHC 187 at [76], [88] and [128](a).
6 The Waikato District Health Board was originally a party to the two proceedings consolidated in Maaka-Wanahi. By the time of the hearing (and judgment), it had been disestablished and replaced by TWO. The Waikato regional division of TWO was named “Te Whatu Ora–Health New Zealand–Waikato”, and that name was used in the judgment. However, the findings and declarations of McQueen J apply to TWO as a whole.
7 Maaka-Wanahi v Attorney-General [2023] NZHC 187 at [94], [97], [98] and [128](b).
8 Maaka-Wanahi v Attorney-General [2023] NZCA 217 at [8].
9 At [32].
this documentary record, taking no point that the authors of the correspondence and the doctors and nurses were not called to give evidence.
[32] Mr McMichael did not give evidence. Mr McMichael’s mother, Beverley McMichael, provided a brief of evidence. With the consent of the Attorney-General, her brief was taken as read. Near the start of her brief, Ms McMichael acknowledged that she would be making some factual assertions outside her direct knowledge, being based instead on documents that had been shown to her by Mr Nicholls, counsel for Mr McMichael. There was no suggestion that those factual assertions were incorrect (Ms McMichael was not cross-examined on her brief10), though it was not clear to me why those assertions were put in a brief when the documents were in any case in evidence.
[33] Of the fourteen charges that made up the first set of charges, some related to offending that was alleged to have occurred on 2 June 2021. Mr McMichael was arrested and appeared in the Wellington District Court on 3 June 2021. Police requested that a forensic nurse review Mr McMichael’s mental health. A forensic nurse met with Mr McMichael at the Court.11 The nurse noted that Mr McMichael “politely declined review”, saying that “he did not need a nurse, but a lawyer”. The Court granted Mr McMichael bail.
[34] Other charges arose from offending that was alleged to have occurred in late June 2021. Mr McMichael was arrested on 30 June 2021 and appeared in the Hutt Valley District Court on 1 July 2021. Police again requested that a forensic nurse review Mr McMichael’s mental health. The nurse recorded that Mr McMichael declined to meet with her, and that fitness and insanity were therefore not able to be screened. Mr McMichael was represented by a duty solicitor. He was remanded in custody to Rimutaka Prison.
10 Ms McMichael was briefly cross-examined on evidence that she gave in support of an application to suppress Mr McMichael’s name, a matter I address at the end of this judgment.
11 Forensic nurses are employed by TWO (and were formerly employed by District Health Boards). Among other things, they provide judges with relevant information on a defendant’s mental health and may “screen” a defendant as to whether a s 38 report is warranted. See Maaka-Wanahi v Attorney-General [2023] NZHC 187 at [12] and [111]–[113].
[35] A few days later, on 5 July 2021, Police sent an urgent request for a review of Mr McMichael’s mental health. An operations manager for the Mental Health, Addictions and Intellectual Disability Service (MHAIDS) for the Wairarapa, Hutt Valley and Capital and Coast DHBs replied that:
I can confirm this person is not open to mental health services. He has had two contacts with Forensic Court Liaison on 1/7/2021 (where he refused to engage), and his family contacted Te Haika on 3/6/2021 concerned about his deteriorating mental state.
This person has a history of aggression and psychosis but has declined to engage with mental health services at this point.
[36] On 7 July 2021, a forensic nurse attempted to see Mr McMichael at Rimutaka Prison. She recorded: “Unable to screen Brendon in prison clinic”.
[37] On 8 July 2021, Mr McMichael appeared remotely in the Hutt Valley District Court represented by his counsel, Alex Dye. Mr Dye advised the Court that he was without instructions as Mr McMichael was “unwilling to engage with counsel”. A forensic nurse recorded that she had written a letter stating the following:
There have been concerns raised from police and mental health staff regarding Brendon’s mental health with attempts made from community/crisis/and in prison forensic service to engage though it has been difficult to properly assess Brendon’s mental health needs as he has declined to speak to any mental health clinician.
Writer has spoken to counsel Mr Dye informing counsel that given the lack of mental health input at Brendon’s request and the potential risk that could pose as well as issues that have been raised that would warrant fitness and insanity being canvased, the forensic service would support a s38 1 a&b being directed.
Writer has been advised that counsel does not wish to pursue this order being made at this stage, should counsel wish to pursue a s38 order the forensic service would support this order.
[38] On 12 July 2021, a forensic nurse and a forensic community psychiatrist, Dr Caroline Holmes, attempted to see Mr McMichael at Rimutaka Prison. The nurse recorded: “Brendon declined to see us and told prison officers that he would kill us”.
[39] On 20 July 2021, Mr McMichael appeared remotely in the Hutt Valley District Court. The Court ordered two reports to be prepared under s 38(1)(a) and (b) of the CPMIP Act. Mr Dye withdrew as counsel at Mr McMichael’s request, as did counsel
on his Wellington charges. The appearance was terminated as Mr McMichael became abusive. Mr McMichael was remanded in custody to 27 July 2021. The notes of a forensic nurse recorded:
Writer informed judge that the forensic service are in support of 38 orders being made to canvass fitness and insanity once new counsel has been assigned, additional information provided to the court as well in regards to the difficulties that could arise if reports were order [sic] in regards to Brendon engaging with the report writer.
[40] On 26 July 2021, Dr Holmes (the forensic community psychiatrist) recorded in a file note that she had attempted to see Mr McMichael that day to review his mental health, but he had politely declined.
[41] On 27 July 2021, Mr McMichael appeared remotely before Judge Tompkins in the Hutt Valley District Court. Mr McMichael chose to be self-represented. The Judge observed that Mr McMichael had “refused to engage” in the s 38 process. Mr McMichael responded, “I don’t want to go through those scum”. Judge Tompkins entered deemed not guilty pleas,12 reiterated that s 38 reports needed to be available, and remanded Mr McMichael in custody until 16 September 2021. Mr McMichael did not apply for bail.
[42] On 2 August 2021, Dr Holmes and a forensic nurse saw Mr McMichael at Rimutaka Prison. Mr McMichael said he was agreeable to see a psychiatrist for a s 38 report but if he felt the psychiatrist was “messing him around” he would become violent. Dr Holmes noted Mr McMichael was “likely to need a 38(2)(c)” (that is, an order that he be detained in a hospital for the purpose of the s 38 assessment). Dr Holmes saw Mr McMichael further on 9, 10, and 11 August 2021, recording that Mr McMichael was continuing to agree to a s 38 report, but remained on the non- urgent waiting list for the Purehurehu secure ward (a secure forensic mental health inpatient ward at Kenepuru Hospital, Porirua).
[43] On 30 August 2021, Dr Holmes and a forensic nurse attempted to talk to Mr McMichael. The psychiatrist and nurse recorded that Mr McMichael’s mental
12 The High Court subsequently held that Judge Tompkins did not have jurisdiction to deem not guilty pleas be entered: McMichael v New Zealand Police [2023] NZHC 1725.
state had deteriorated, that he was abusive (requiring six or seven staff to unlock him) and that he did not want to see anybody from the forensic team.
[44] Another doctor and a nurse saw Mr McMichael in person on 3 September 2021. Initially he was calm. He expressed frustration that the s 38 report had not been completed. He said he needed it before his next court date in two weeks. However, he also said he did not want to engage in a discussion about his mental health, as he did not feel there was anything wrong with him. He said he had not been taking any of his prescribed medication. At the end of the interview, Mr McMichael became agitated and threatened violence towards the doctor.
[45] On 8 September 2021, Mr McMichael was transferred from Rimutaka Prison to the Purehurehu secure ward under s 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the MHCAT Act).
[46] On 16 September 2021, Mr McMichael appeared remotely at the Hutt Valley District Court. He was still unrepresented. It appears he did not apply for bail. Neither of the s 38 reports had been completed. The Judge appointed counsel to assist the Court and remanded Mr McMichael in custody to 14 October 2021 to enable the reports to be completed.
[47] On 21 September 2021, Dr Holmes saw Mr McMichael for an assessment to complete the first s 38 report. Mr McMichael was co-operative.
[48] On 27 September 2021, a psychologist, Mr Paul Carlyon, saw Mr McMichael to complete the second s 38 report. Mr McMichael declined to be interviewed by Mr Carlyon. He told Mr Carlyon that he had recently met with Dr Holmes and that should be sufficient. He also declined Mr Carlyon’s request to review his health information. On 1 October 2021, Mr Carlyon reported to the Hutt Valley District Court that, in these circumstances, he was unable to form any opinion on Mr McMichael’s fitness to stand trial or to prepare a s 38 report.
[49] On 6 October 2021, Dr Holmes submitted a s 38 report on Mr McMichael. She concluded that Mr McMichael was fit to stand trial. However, she said that because
of “the fluctuation of his mental state” it was possible that his fitness may need reassessing if he deteriorated nearer to the trial date. Dr Holmes also formed the view that Mr McMichael may have a defence of insanity for part of the offending.
[50] On 14 October 2021, Mr McMichael appeared (remotely from the Purehurehu secure ward) in the Hutt Valley District Court before Judge Tompkins. Mr Nicholls appeared as counsel assisting the Court. Mr McMichael said he wanted Mr Nicholls to represent him. Judge Tompkins permitted this. Mr Nicholls advised the Judge that Mr McMichael now understood that a second s 38 report was needed and would co- operate with its preparation. Judge Tompkins directed that a second s 38 report be completed and remanded Mr McMichael in custody until 25 November 2021.
[51] From 19 October 2021, Mr McMichael’s medical notes began recording that staff were considering a return to prison and that Mr McMichael would like to go back to prison. On 29 October 2021, the notes recorded that Mr McMichael was eager to ensure his court reports were completed and that a message was sent to Mr Carlyon, the psychologist, that Mr McMichael was “now willing to take part in this”.
[52] On 2 November 2021, Mr McMichael was transferred, under s 47 of the MHCAT Act, from the Purehurehu secure ward to Rimutaka Prison.
[53] On 17 November 2021, the forensic nurse for the Hutt Valley District Court emailed the Court and Mr Nicholls advising that the second s 38 report had “not been allocated” and accordingly the report would not be completed by Mr McMichael’s next appearance on 25 November 2021. An extension to 22 December 2021 was requested to provide the report.
[54] The next day, Mr Nicholls filed a memorandum in the Hutt Valley District Court. He informed the Court that he had negotiated with the Police that some charges would be withdrawn and that there was an agreed summary of facts for all remaining charges. He said Mr McMichael did not wish to avail himself of any possible insanity defence, but rather wanted to plead guilty to all charges and be sentenced. Mr Nicholls submitted that Mr McMichael had already served more time in custody than any
sentence of imprisonment that would be imposed. He submitted that a further remand in custody to obtain the remaining s 38 report was not appropriate.
[55] On 25 November 2021, Mr McMichael appeared remotely before Judge Sainsbury in the Hutt Valley District Court. Judge Sainsbury correctly declined to allow Mr McMichael to plead guilty in the absence of the second s 38 report.13 However, the Judge accepted that if he were to be sentencing Mr McMichael that day, it would be to a sentence that “would well and truly by now be time served”.14 Accordingly, the Judge granted bail to Mr McMichael (even though he did not have a bail address), remanding him to appear again on 30 November 2021, at which time the Court would consider the practical arrangements for getting the second s 38 report.
[56] On 30 November 2021, Mr McMichael failed to appear at the Hutt Valley District Court. A warrant was issued for his arrest. By that time, forensic services had arranged an interview with Mr McMichael on 8 December 2021 for the second s 38 report.
[57] On 2 December 2021, Mr McMichael appeared voluntarily at the Hutt Valley District Court with Mr Nicholls. The interview for the second s 38 report was confirmed for 8 December 2021.
[58] On 8 December 2021, Mr Carlyon assessed Mr McMichael for the second s 38 report. Mr McMichael ended the assessment early.
[59] On 11 January 2022, Mr Carlyon submitted his s 38 report. Mr Carlyon expressed the opinion that Mr McMichael was fit to stand trial. Mr Carlyon also recorded that while Mr McMichael was initially co-operative, he became hostile and resistant to enquiries. Accordingly, Mr Carlyon could not form an opinion as to whether a defence of insanity was available to Mr McMichael.
13 Once an inquiry into fitness to stand trial is commenced, it must be completed: McKay v R [2009] NZCA 378, [2010] 1 NZLR 441. Until it is completed, a plea cannot be received: R v Dalley [2009] NZCA 419 at [16].
14 Police v McMichael [2021] NZDC 23272 at [16].
[60] The same day, Mr McMichael appeared before Judge Davidson at the Hutt Valley District Court. It appears the Judge found that Mr McMichael was fit to stand trial, as Mr McMichael’s guilty plea to the charges was accepted. The Judge sentenced Mr McMichael to a total of four months’ imprisonment and noted he would be released almost immediately from that sentence.
Was there undue delay in trying Mr McMichael on the first set of charges?
[61] Mr Nicholls submitted that the five and a half months that passed between the District Court ordering the s 38 reports on 20 July 2021 and the second of those reports being provided to the Court on 11 January 2022 meant there was an undue delay in trying Mr McMichael.
[62] Mr Nicholls’ written submissions on this point (prepared before the Court of Appeal’s decision in Maaka-Wanahi) were premised entirely on the proposition that the CPMIP Act imposes a time limit of 14 days (or 30 days with the defendant’s consent) on the completion of reports under s 38 and that McQueen J’s finding to the contrary in Maaka-Wanahi was incorrect. Understandably, Mr Nicholls did not advance that proposition at the hearing. Less understandably, he did not positively advance an alternative submission as to why the delay in trying Mr McMichael was undue. He merely responded to particular points made on behalf of the Attorney- General as to why there was no undue delay.
[63] I assess whether the delay was undue by reference to the factors identified by the Supreme Court in R v Williams.15
[64] The first consideration is the overall time taken to dispose of Mr McMichael’s case (not merely the time taken for both s 38 reports to be provided). The first set of charges were laid through June 2021 and were disposed of on 11 January 2022, roughly seven months later. Given that there were fourteen charges, and some were moderately serious by District Court standards, seven months is not excessive in the abstract. However, the only matter addressed in that period that was relevant to
15 R v Williams [2009] NZSC 41, [2009] 2 NZLR 750. I include the factors apparently approved by the Supreme Court by referring to the Court of Appeal’s judgment in Martin v Tauranga District Court [1995] 2 NZLR 419.
disposition was Mr McMichael’s mental health. In that light, seven months might, if a delay was caused by some failing of the Crown and the delay prejudiced the defendant, be an undue delay.
[65] The next consideration is the reason for any delay. In this case, the focus is on the reasons it took until 11 January 2022 for two reports on Mr McMichael’s mental health to be produced. The primary reason for that delay is Mr McMichael having declined to engage with forensic mental health professionals. Mr McMichael repeatedly declined to see a forensic nurse from his first appearance on 3 June 2021 through to at least 12 July 2021. This delayed the ordering of the s 38 reports until 20 July 2021. Mr McMichael then declined to be interviewed by the first health assessor, Dr Holmes. On 2 August 2021, Mr McMichael did say he was agreeable to see a psychiatrist for a s 38 report, but he also said that if he felt the psychiatrist was “messing him around” he would become violent.
[66] For the rest of August 2021, Mr McMichael said he was agreeable to a s 38 report. I accept this was a window of opportunity in which he could have been assessed. However, it was a relatively brief window. By the end of that month, Mr McMichael was saying he did not want to see anyone from the forensics team. On 3 September 2021, he said he did not want to engage in a discussion about his mental health, as he did not feel there was anything wrong with him.
[67] Mr McMichael was assessed on 21 September 2021 by Dr Holmes. On 27 September 2021, Mr McMichael declined to be assessed by the second report writer, Mr Carlyon. As noted, I accept that there was a window in August 2021 in which these two assessments could have been attempted. I infer that, had they been attempted, Mr McMichael would still have declined the assessment by Mr Carlyon. Nonetheless, this would have shortened the overall process by about one month.
[68] On 14 October 2021, Mr McMichael agreed to a second assessment. Mr Carlyon then assessed Mr McMichael on 8 December 2021. I accept that, in the intervening seven weeks, Mr McMichael remained agreeable, even eager, to have the assessment. This delay was not attributable to him.
[69] Mr Carlyon provided his report on 11 January 2022. Given that a health assessor generally has to consult with others (such as the defendant’s family) in preparing a s 38 report,16 and given the time of the year, the time taken to complete the report was not excessive.
[70] In summary, apart from the month of August 2021 and about seven weeks from 14 October 2021, the delay was attributable to Mr McMichael’s acts. This is not to say that Mr McMichael was morally culpable for that delay. It is merely to observe the cause of that delay.
[71] The balance of the delay was not caused by any act of the prosecutor. Police requested from the outset that Mr McMichael’s mental health be reviewed.
[72] Nor, in my view, can it be said that the balance of the delay was caused by an act (or omission) of any other part of the Crown. The District Court ordered that two health assessors prepare reports on Mr McMichael under s 38(1). It is not alleged or suggested that the District Court did anything other than what was the norm at the time, namely make the order without naming any health assessors. I agree with the finding of McQueen J in Maaka-Wanahi that such an order, even when received by the local DHB (prior to 1 July 2022) or by TWO (from 1 July 2022), does not oblige the DHB or TWO to prepare a report or to engage a health assessor to prepare one.17 Any such obligation could arise only from the DHB or TWO separately agreeing to do so. It is common ground that when any order for a s 38(1) report is made, the Ministry of Justice commissions a forensic mental health service provider to prepare the report.18 That commission may be with a public provider (formerly a DHB, now TWO, though in either case the report would be prepared by a particular psychiatrist or psychologist) or with a psychiatrist or psychologist in their private capacity.
[73] In this case, it appears from the reports prepared by Dr Holmes and Mr Carlyon that the Capital and Coast DHB accepted a commission from the Ministry of Justice
16 Section 39(2) of the CPMIP Act.
17 McQueen J’s finding, though not appealed, received implicit confirmation by the Court of Appeal in Maaka-Wanahi v Attorney-General [2023] NZCA 217 at [77].
18 This was pleaded by Mr McMichael and admitted by the Attorney-General. See also Maaka- Wanahi v Attorney-General [2023] NZHC 187 at [5].
to procure the reports on Mr McMichael. But there is no allegation or evidence as to the terms on which the DHB agreed to do so. There is no suggestion, for instance, that the DHB agreed that it would procure health assessors to assess Mr McMichael or prepare reports by particular dates. In any event, I consider it most unlikely that such a commitment would have been made by the DHB. This is because:
(a)On 8 August 2021, the New Zealand Forensic Psychiatry Advisory Group (NZFPAG), a group of forensic clinical directors and forensic service managers from the forensic mental health services across New Zealand (provided through five DHBs), wrote to the Chief High Court Judge and Chief District Court Judge with concerns about health assessors’ reports, including s 38 reports. NZFPAG set out the way in which the DHBs’ forensic mental health services would prioritise such reports. NZFPAG said that the first priority would include defendants with a known mental health problem who were detained for the purpose of assessment (a category into which Mr McMichael fell). NZFPAG said that forensic mental health services would “aim” to complete these as close as possible to the statutory timeframe19 or next court date “although this will depend on clinical service demands”. It is therefore unlikely that, in July 2021, DHBs would have been committing to firm dates for s 38 reports.
(b)In Mr McMichael’s case, when the reports were ordered on 22 July 2021, the forensic nurse recorded that she had told the court that difficulties might arise with Mr McMichael engaging with report writers. It is therefore unlikely that the DHB would have undertaken to procure reports on Mr McMichael by a firm date.
[74] So, even if the acts or omissions of a DHB could be attributed to the Crown for the purpose of assessing whether there had been undue delay (a matter that Mr Nicholls did not explore, and on which I do not need to express a view), there is
19 Some of the reports to which the letter referred did have statutory timeframes (for example, reports under ss 23 and 35 of the CPMIP Act).
nothing to suggest that the Capital and Coast DHB failed to meet any obligation it undertook to provide the s 38 reports.
[75] Mr McMichael alleges that the delays were caused by the Minister of Health failing “to ensure that sufficient forensic mental health services were available”. By this he means forensic mental health services provided by (at the relevant time) the DHBs. John Crawshaw, the Director of Mental Health and Director of Addiction Services at the Ministry of Health, gave evidence for the Attorney-General on these matters. Dr Crawshaw said there were pressures on the workforce to complete s 38 and other Court reports before the COVID-19 pandemic, but the pandemic had created additional workforce pressures. He said the issue was not one of funding but of recruitment and retention of the necessary experts who could function as health assessors. He identified steps that had been taken to increase the pool of such experts in New Zealand, including in the public sector. For example, the number of funded clinical psychology interns had more than doubled between 2017 and 2022. He noted, however, that growing the pool of potential health assessors took time, with training (for example) typically taking at least 12 years. Dr Crawshaw’s evidence was that demand for forensic Court reports had increased over the last four to five years, doubling in some regions. Dr Crawshaw also gave evidence that steps are being taken to address delays in forensic Court reports, such as by developing a memorandum of understanding between the Ministry of Health and the Ministry of Justice on the provision of such reports.20
[76] Dr Crawshaw’s evidence on these matters was not challenged. It was consistent with findings and observations made by McQueen J and the Court of Appeal in the Maaka-Wanahi decisions. It shows that the key reasons for any delays (not otherwise attributable to Mr McMichael) were difficulties in recruiting and retaining necessary experts and increased demands for reports, that these reasons have arisen relatively recently, and that the Ministry has been taking steps (both before and after Mr McMichael’s criminal proceeding) to address them. In my view, this tends against a finding of undue delay.
20 Dr Crawshaw also gave evidence that the Ministry of Health does not directly fund the provision of Court reports – they are, rather, funded by the Ministry of Justice. I do not consider the source of funding to be relevant to the question of undue delay.
[77] Finally, there is the question of prejudice to Mr McMichael. Mr Nicholls submitted that prejudice arose because Mr McMichael spent more time in custody than he should have.
[78] I accept, as did the Attorney-General, that Mr McMichael spent longer in custody than he was eventually sentenced to. But I do not accept that this was a result of any delays in the completion of the s 38 reports. The maximum period for which Mr McMichael was able to be detained for the purpose of the s 38 assessments was, under s 38(2), 14 days. He was, of course, detained for longer than that. But it is not clear that the District Court, when first ordering the s 38 reports, ordered that Mr McMichael be detained under s 38(2) (rather than simply continuing Mr McMichael’s remand in custody).21 Even if the Court did so, at Mr McMichael’s next appearance on 27 July 2021 he was remanded in custody in the usual way.22 Mr McMichael was thereafter always at liberty to apply for bail. He did not do so until four months later, at his Court appearance on 25 November 2021. At that point, the second s 38 report remained outstanding, so any delay in that report did not cause Mr McMichael to delay applying for bail. Judge Sainsbury granted Mr McMichael bail that day.
[79] For completeness,23 I acknowledge that, had assessments taken place during the window of opportunity in August 2021, s 38 reports might have been completed by mid-September 2021. It might be argued that the events that eventually occurred in January 2022 (a finding of fitness to stand trial, guilty pleas, sentence and immediate release) would then have occurred in mid-September 2021, leading to Mr McMichael being released two months earlier than his grant of bail on 25 November 2021. But I consider this too speculative. Mr McMichael’s mental state deteriorated during August 2021. He may have been found unfit to stand trial. Even if found fit, he was not represented until 14 October 2021. There is no reason to think that a resolution would thereafter have been achieved any earlier than 25 November 2021.
21 I was not provided with any record of Mr McMichael’s appearance when the District Court ordered the s 38 reports.
22 As McQueen J said in Maaka-Wanahi v Attorney-General [2023] NZHC 187 at [80], following completion of the assessment or expiry of the maximum period of detention, a defendant detained under s 38 “may be remanded in custody in the normal fashion, or released on bail”. See also McMichael v New Zealand Police [2023] NZHC 401 at [31]–[32].
23 The argument that I address here was not specifically advanced by Mr Nicholls.
[80] My key findings are that any delay was largely attributable to Mr McMichael’s actions and that the additional time he spent in custody was not a result of any delay in trying the charges or in having the s 38 reports completed. I find there was no undue delay in trying Mr McMichael on the first set of charges.
What happened on the second set of charges?
[81] On 6 April 2022, Mr McMichael was arrested and charged with wilful damage, being unlawfully in a building, disorderly behaviour, assault with a blunt instrument, and threatening to kill. This alleged offending occurred between 7 February and 6 April 2022.
[82] Mr McMichael made his first appearance on those charges on 7 April 2022, in the Hutt Valley District Court. He was seen by forensic mental health staff prior to his appearance, for the purpose of assessment under the MHCAT Act. That process was stopped, as a senior clinician considered that Mr McMichael did not meet the threshold to continue compulsory assessment under that Act. By consent, Judge Sainsbury remanded Mr McMichael in custody to Rimutaka Prison to 11 April 2022.
[83] On 11 April 2022, Mr McMichael appeared before Judge O’Dwyer and applied for bail. Judge O’Dwyer declined the application. A forensic court liaison nurse recommended that s 38 reports be ordered to address fitness and insanity. The Judge directed the completion of two such reports. Mr McMichael was remanded in custody to 10 May 2022. The nurse’s notes record that she advised the Judge that forensic services would not be able to complete the reports by that date, as they did not have any available report writers to allocate.
[84] On 13 April 2022, MHAIDS wrote to the District Court noting that it was unable to complete the s 38 reports by 10 May 2022, owing to a heavy workload and the impact of COVID-19 on staffing. It requested an extension to 28 June 2022. It is not clear what response, if any, there was to this request.
[85] On 10 May 2022, Mr McMichael appeared before Judge Tompkins. On behalf of Mr McMichael, Mr Nicholls sought a dismissal of the charges on the ground that MHAIDS had failed to produce the s 38 reports. Judge Tompkins declined to dismiss
the charges. The Judge also declined to grant bail to Mr McMichael, primarily because of the risk of offending while on bail. His Honour remanded Mr McMichael in custody to 28 June 2022 “to enable the directed reports to be available”.
[86] The same day, Mr McMichael was seen by Dr Holmes by AVL to prepare the first s 38 report. The interview lasted only 10 minutes as Mr McMichael elected to leave the interview. Dr Holmes also attempted to interview Mr McMichael on 16 May 2022, but could not do so as he was in isolation, having contracted COVID-19.
[87] Mr McMichael appealed Judge Tompkins’ decision declining to grant him bail. On 26 May 2022, Cooke J dismissed Mr McMichael’s appeal.24 While acknowledging that Mr McMichael had been in custody longer than the maximum period of detention allowed under the CPMIP Act for the purpose of s 38 assessments, Cooke J said that did not mean Mr McMichael should be released on bail. Bail had to be assessed in accordance with the Bail Act 2000. His Honour agreed with Judge Tompkins’ view that there would be a significant risk to the safety of the public if Mr McMichael were released on bail. While the point might be reached that continued detention on remand could not be justified because the period of remand was longer than any period Mr McMichael would serve if sentenced to imprisonment, that point had yet to be reached.
[88] On 25 May 2022, the co-ordinator of the Forensic Community Mental Health Team recorded that Mr McMichael was declining to see Rimutaka’s Prison’s “In Reach” team. Dr Holmes attempted to see Mr McMichael on 13 and 20 June 2022, but he could not be brought up to the Prison’s health clinic. On 23 June 2022, Mr McMichael declined to see the forensics team.
[89] On 23 June 2022, Dr Holmes provided a s 38 report to the Court. She opined that Mr McMichael was unfit to stand trial. She was not able to form an opinion on whether he had a defence of insanity.
[90] On 27 June 2022, Dr Holmes recorded that the second s 38 report writer had been “unable to get into the prison”.
24 McMichael v New Zealand Police [2022] NZHC 1190.
[91] On 28 June 2022, Mr McMichael appeared in the Hutt Valley District Court. MHAIDS had informed the Court that day that it had been unable to complete the second s 38 report, owing to COVID-19 and a heavy workload. MHAIDS requested an extension to 30 August 2022. Mr McMichael applied for bail. On his behalf, Mr Nicholls referred to the decision of Cooke J dated 26 May 2022, and submitted that the point had now arrived where continued detention could not be justified given the end sentence that might be imposed. Judge Mika declined the application, holding that the risks to Mr McMichael and to the community (were he granted bail) outweighed the consideration that his time on remand might exceed the end sentence that might be imposed. Judge Mika remanded Mr McMichael in custody to 30 August 2022 so that the second s 38 report could be completed.
[92] Meanwhile, Mr McMichael had also appealed the 10 May 2022 decision of Judge Tompkins declining to dismiss the charges. On 4 August 2022, Cull J dismissed the appeal, holding that while s 38 of the CPMIP Act imposes a maximum timeframe on detention for the purposes of assessment, it does not prescribe the period within which the reports must be completed.25 (This was the same view that McQueen J subsequently reached in Maaka-Wanahi).
[93] On 28 August 2022, two days before Mr McMichael was next to appear in Court, the forensic mental health service of TWO (which had replaced the DHBs on 1 July 2022) wrote to the Hutt Valley District Court advising that the second s 38 report would not be completed by Mr McMichael’s next appearance. TWO sought an extension to 27 September 2022.
[94] Mr McMichael appeared in the Hutt Valley District Court, before Judge Mika, on 30 August 2022. Counsel did not address me on what happened at that appearance. Judge Mika’s notes record that Mr McMichael applied for bail and that the Judge declined the application on the basis of public safety.26 The Judge remanded Mr McMichael in custody until 28 September 2022.
25 McMichael v New Zealand Police [2022] NZHC 1920. Mr McMichael sought the leave of the Court of Appeal to appeal this decision. The Court of Appeal declined leave, on the ground that the High Court had lacked jurisdiction to hear the appeal from the District Court: McMichael v New Zealand Police [2022] NZCA 647.
26 These notes are on the charging document. They say that reasons were to be typed up. However, I was not referred to any typed bail decision.
[95] On 13 September 2022, Mr McMichael was assessed by Chriztine Gemmell for the second s 38 report. The interview lasted 15 minutes as Mr McMichael became agitated and wanted to end the interview. He did not allow Ms Gemmell to access his mental health files.
[96] On 15 September 2022, Ms Gemmell provided her s 38 report. In her opinion, Mr McMichael was unfit to stand trial. She noted that while in prison Mr McMichael had declined input from forensic mental health services, including medication.
[97] On 28 September 2022, Mr McMichael appeared in the Hutt Valley District Court before Judge Mill. There was no dispute that Mr McMichael was unfit to stand trial and that he had been involved in the offending (that is, he had caused the acts or omissions forming the basis of the offending with which he was charged).27 Under s 23 of the CPMIP Act, if Judge Mill had determined that Mr McMichael was unfit to stand trial and had been involved in the offending, the Judge would have had to either grant bail to Mr McMichael or remand him to a hospital. However, the Judge was not prepared to grant bail (because of risks to public safety) and was advised that no hospital bed would be available for Mr McMichael until 4 October 2022. In those circumstances, Judge Mill postponed making a finding of unfitness to stand trial on the basis that it was not in Mr McMichael’s best interests, under s 8(1) of the CPMIP Act, to make such a finding where there was no hospital bed presently available to accommodate him.28 Judge Mill remanded Mr McMichael in custody until 4 October 2022.
[98] Mr McMichael returned to Court on 4 October 2022, before Judge Carter. A hospital bed was available for Mr McMichael. Judge Carter found that Mr McMichael was unfit to stand trial and that he had been involved in the offending. The Judge ordered under s 23 of the CPMIP Act that inquiries be made to determine the most suitable method of dealing with Mr McMichael. The Judge remanded Mr McMichael to the Purehurehu ward for those inquiries to be undertaken. Once Mr McMichael
27 An inquiry into Mr McMichael’s involvement in the offending would have been required if Mr McMichael had been found unfit to stand trial: CPMIP Act, ss 8A(5) and 10.
28 The High Court subsequently held, in McMichael v New Zealand Police [2023] NZHC 1725, that “it cannot be in the interests of the defendant, under s 8(1), to postpone the determination of fitness to stand trial and remand the defendant in custody “solely” because there is no hospital bed available”.
was at that ward, an assessment also commenced under the MHCAT Act as to whether Mr McMichael should be treated as a patient under that Act.
[99] Meanwhile, Mr McMichael had appealed Judge Mill’s decision of 28 September 2022 declining bail. Gwyn J heard the appeal on 4 October 2022 and delivered judgment the next day. Gwyn J noted that it was not in dispute that Mr McMichael was seriously unwell, with two health assessors finding that he was acutely psychotic. Her Honour said it was a “shocking situation”, saying that Mr McMichael had been held in custody pending determination of fitness to stand trial for over five months, whereas the statutory maximum for that purpose (under the CPMIP Act) was 30 days, and in the meantime “he is not receiving the mental health treatment he plainly needs”.29 Her Honour was of the view that the point that Cooke J had referred to, where Mr McMichael’s continued detention could not be justified because the period of custody on remand exceeded any period he might serve if sentenced to imprisonment, had arrived. Her Honour would have been inclined to grant bail, were it not for Judge Carter having remanded Mr McMichael to hospital on 4 October 2022. In light of Judge Carter’s decision, Gwyn J dismissed the appeal on the basis it was moot.30
[100] Inquiries were made under s 23 of the CPMIP Act to determine the most suitable method of dealing with Mr McMichael. On 1 December 2022, Judge Johnston ordered that Mr McMichael be treated as a patient under the MHCAT Act and stayed the charges in accordance with s 27 of the CPMIP Act.
Was there undue delay in trying Mr McMichael on the second set of charges?
[101] Mr McMichael ran his case by focusing on the delay from when he was charged on 6 April 2022 to when he was found unfit to stand trial and remanded to hospital rather than prison on 4 October 2022. This was a period of six months.
[102] Mr Nicholl’s written submissions were again premised on the proposition that the CPMIP Act imposes a time limit on the completion of s 38 reports. Mr Nicholl
29 McMichael v New Zealand Police [2022] NZHC 2554 at [16].
30 At [19].
again did not advance that proposition at the hearing and did not advance an alternative submission, preferring to respond to points made on behalf of the Attorney-General.
[103] In assessing whether there was undue delay, the first consideration is the overall time taken to dispose of Mr McMichael’s case. Here, as noted, Mr McMichael focussed only on the six months from when he was charged to when he was found unfit to stand trial. The only matter addressed in that time was Mr McMichael’s fitness to stand trial.
[104] The next consideration is the reason for any delay. The two s 38 reports were ordered on 11 April 2022, soon after Mr McMichael’s first appearance. The first report was produced by Dr Holmes on 23 June 2022, and the second by Ms Gemmell on 15 September 2022. It thus took five months for both reports to be produced.
[105] A modest part of this delay was attributable to Mr McMichael’s actions. Dr Holmes saw Mr McMichael to prepare the first report on 10 May 2022. Mr McMichael left the interview after ten minutes. This contributed to the delay in Dr Holmes providing her report.
[106] Some of the delay was caused by extraneous matters. When the court ordered the reports, MHAIDS promptly explained that it could not produce the reports by 10 May 2022. One of the reasons was the impact of COVID-19 on staffing. Dr Holmes was prevented from interviewing Mr McMichael on 16 May 2022 because he had contracted COVID-19. The second report writer was unable to get into the prison to see Mr McMichael on 27 June 2022. At that time MHAIDS informed the court it was unable to complete the report by 28 June 2022. One of the reasons was COVID-19.
[107]None of the delay was caused by the prosecutor.
[108] It cannot be said that any of the delay was caused by an act or omission on the part of the Capital and Coast DHB or, from 1 July 2022, on the part of TWO. There is no allegation or evidence that the DHB or TWO undertook to procure health assessors to assess Mr McMichael or prepare reports by particular dates. For much the same reasons as set out in relation to the first set of charges, it is most unlikely that
they would have done so. Further, representatives of the DHB or TWO advised the court on 11 April 2022, 13 April 2022, 28 June 2022, and 28 August 2022 that they would not be able to provide reports by particular dates.
[109] Mr McMichael alleges, as he did with the first set of charges, that the delays were caused by the Minister failing to ensure that sufficient forensic mental health services were available through the DHB and TWO. I draw the same conclusion on this as I did in relation to that first set. I find that the key reasons for any delays (not attributable to Mr McMichael or extraneous matters such as COVID-19) were difficulties in recruiting and retaining necessary experts and increased demands for reports, that these reasons have arisen recently, and that the Ministry has been taking steps to address them. This tends against a finding of undue delay.
[110] Finally, I must consider any prejudice to Mr McMichael from the delay. Mr Nicholls articulated the prejudice by comparing the time that Mr McMichael spent in custody (six months) with the time he would have served in custody if convicted and sentenced. Mr Nicholls submitted that the sentence would have been something like two months’ imprisonment, with no more than 30 days in custody.
[111] I consider that to be an inappropriate comparison, as Mr McMichael was never going to be sentenced on these charges given that he was unfit to stand trial. Had the reports been provided earlier, Mr McMichael would have been found unfit and remanded to hospital earlier than he otherwise was. Mr Nicholls did not explore when that should have happened.31 I accept that, were it not for the various reasons for the delay that I have identified above, the s 38 reports might have been provided and a finding of unfitness made within two months of Mr McMichael being charged. I also accept that it was prejudicial for Mr McMichael to be in custody in prison rather than remanded to a hospital.
[112] Although Mr McMichael suffered some prejudice from the delay, in my view the most relevant consideration is that the delay was caused primarily by extraneous
31 In his written submissions Mr Nicholls said that the reports had to be provided within 14 days and that McQueen J’s decision in Maaka-Wanahi was incorrect. As noted earlier, Mr Nicholls did not advance that proposition at the hearing.
factors, constraints on institutional resources and to some extent by Mr McMichael himself. The prosecution was not responsible for the delay. The delay was not the result of any act or omission of the DHB or TWO. The Ministry has been taking steps to address the constraints on its resources. Overall, I consider there was no undue delay.
Summary
[113] I conclude that there was no undue delay on either set of charges. Accordingly, there was no breach of Mr McMichael’s right in s 25(b) of the Bill of Rights to be tried without undue delay. It is therefore unnecessary for me to consider whether the Minister was responsible for the breach or whether damages should be awarded to compensate for the breach.
Was Mr McMichael’s detention in prison from 28 September to 4 October 2022 inhumane and disrespectful to his dignity as a person?
[114] Section 23(5) of the Bill of Rights provides that “[e]veryone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person”. Mr McMichael claims that his s 23(5) right was breached by being detained in prison when it had been recommended that he needed mental health treatment in hospital.
[115] This claim was advanced in relation to the period from 28 September 2022 (when Judge Mill postponed making a finding of unfitness to stand trial, declined bail and remanded Mr McMichael in custody) to 4 October 2022 (when Judge Carter found Mr McMichael to be unfit and remanded him to hospital). Mr McMichael seeks
$5,000 compensation for the six days he spent in prison awaiting transfer to hospital, and a declaration that his right was breached.
[116] Mr McMichael pleads that being detained in prison for this period was inhumane and disrespectful to his dignity as a person because he did not get the treatment he needed it when he needed it. Mr Nicholls expanded on this only slightly in his submissions. He identified two respects in which Mr McMichael remaining in prison amounted to inhumane treatment. First, Mr McMichael did not have the same access to medical staff as he would have in hospital. Secondly, Mr McMichael
was not compulsorily required to take medication, whereas he would have been required to had he been in hospital.
[117] Mr Nicholls did not address me on the law relating to s 23(5). Ms Nizam, counsel for the Attorney-General, did. In S v Attorney-General, Ellis J said:32
[J]ust as a breach of s 23(5) involving positive acts or conduct requires those acts or conduct to be “clearly” (but not grossly) excessive, it might also be thought that a breach involving a failure to act or to protect would require that failure to act to be a clear (but not gross) departure from what might reasonably be expected in the particular circumstances.
[118] In A v Attorney-General,33 Doogue J surveyed cases in which a breach of s 23(5) was found. Her Honour concluded that these demonstrated “that a breach of s 23(5) is established in systemic neglect, deprivation, or unlawful practices by the detaining authority”.34
[119] In Mr McMichael’s case, there is no claim that there were positive acts or conduct by the prison authorities in the six-day period that breached s 23(5). There is no allegation that the forensic mental health services in the prison were not available to Mr McMichael during that period. Nor is any specific criticism made of those services – other than that they were inferior to those provided in hospital, in particular that there was no compulsory treatment. The claim is merely one of a failure to act by providing to Mr McMichael the mental health treatment he would have received in hospital.
[120] Mr Nicholl emphasised that both the s 38 reports indicated that Mr McMichael required treatment. Dr Holmes said in her report of 23 June 2022 that Mr McMichael was acutely psychotic and needed “admission for treatment under the Mental Health Act as soon as this can be facilitated”. Ms Gemmell said in her report of 15 September 2022 that Mr McMichael presented with a serious mental illness and that he required treatment. She endorsed Mr McMichael being admitted to the Purehurehu ward for assessment and treatment under the MHCAT Act.
32 S v Attorney-General [2017] NZHC 2629 at [244].
33 A v Attorney-General [2020] NZHC 3401.
34 At [166].
[121] I accept that Mr McMichael was mentally ill and that treatment in hospital had been recommended. But I consider that detaining him in prison for the six-day period while a bed was awaited in hospital fell well short of breaching s 23(5). This was not a clear departure from what might reasonably be expected in circumstances (which included a shortage of qualified health professionals). There is no evidence of systemic neglect or of systemic deprivation. And it is not suggested that there were any unlawful practices.
[122] I therefore find there was no breach of s 23(5). It is unnecessary to address the other issues that would have arisen had I found a breach.
Should interim suppression be made permanent?
[123] Shortly before the hearing, Mr Nicholls filed a memorandum in which he sought suppression of the names of Mr McMichael and his mother. I heard from counsel on this issue at the start of the hearing. I then made, out of an abundance of caution, an interim order prohibiting publication of their names in relation to this proceeding. At my direction, counsel then filed short submissions after hearing on whether the interim suppression order should be made permanent.
[124] As part of its inherent jurisdiction to control court proceedings, this Court has power in civil proceedings to make an order preventing, in relation to a particular proceeding, the publication of the identity of litigants or other persons before it. The starting point, however, is the principle of open justice. There is therefore a presumption that all aspects of a civil proceeding can be published.
[125] To overcome that presumption, the party seeking the order “must show specific adverse consequences” sufficient to justify an exception to the open justice principle.35 The standard is a high one.36
[126] Mr McMichael remains unwell. Mr Nicholls submitted that because of his mental illness, publication of Mr McMichael’s or his mother’s name could be a “trigger” that led him to suffer further adverse effects. There was evidence to that
35 Erceg v Erceg [2016] NZSC 135, [2017] 1 NZLR 310 at [13].
36 At [13].
effect from Mrs McMichael. However, Mrs McMichael acknowledged that the effects to which she had referred could be managed to a reasonable degree by the medication that he is still receiving as a patient under the MHACT Act. There was no evidence from a health professional.
[127] The evidence does not satisfy me that Mr McMichael or Mrs McMichael would suffer specific adverse consequences if their names were published in relation to this proceeding. This is particularly so given that Mr McMichael did not seek suppression in any of his criminal proceedings. The judgments arising from those proceedings describe Mr McMichael’s mental health issues. All that is already in the public domain.
[128] I therefore decline to grant permanent name suppression. The interim order now lapses.
Result
[129]I dismiss Mr McMichael’s claims.
[130] If the Attorney-General seeks costs, and costs cannot be agreed, memoranda should be filed.
Campbell J
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