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…
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