McMichael v Police - [2023] NZHC 1725

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

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

CRI-2022-485-71

CRI-2022-485-72 [2023] NZHC 1725

BETWEEN
BRENDON MURRAY MCMICHAEL

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 30 May 2023

Appearances:

C J Nicholls for the Appellant C A Brook for the Respondent

Judgment:

5 July 2023

JUDGMENT OF GAULT J

This judgment was delivered by me on 5 July 2023 at 3:00 pm.
Registrar/Deputy Registrar

……………………………………

Solicitors / Counsel:
Mr C J Nicholls, Barrister & Solicitor, Lower Hutt Ms C A Brook, Crown Law, Wellington

MCMICHAEL v POLICE [2023] NZHC 1725 [5 July 2023]

[1] Mr McMichael was granted leave to appeal on two questions of law pursuant to s 296 of the Criminal Procedure Act 2011 (CPA) by Thomas J on 12 May 2023.1 Both questions relate to the process under the Criminal Procedure (Mentally Impaired Persons) Act 2003.

[2] The questions of law arise in relation to separate sets of charges faced by Mr McMichael in 2021 and 2022 respectively.

[3] The 2021 charges, relating to separate incidents on 2, 29 and 30 June 2021, comprised common assault (x2),2 wilful damage,3 disorderly behaviour likely to cause violence4 and resisting police5 (on 2 June 2021); shoplifting6 and obscene language7 (on 29 June 2021); and threatening to kill,8 intentional damage,9 possession of a knife,10 unlawfully being in a building,11 behaving threateningly,12 wilful damage13 and obscene language14 (on 30 June 2021).

[4] The 2022 charges, relating to incidents in February and April 2022, comprised wilful damage15 and unlawfully being in a building16 (between 7 and 13 February 2022); and threatening to kill,17 assault with a weapon18 and disorderly behaviour19 (on 6 April 2022).

1      McMichael v Police [2023] NZHC 1125.
2      Crimes Act 1961, s 196: maximum penalty one year imprisonment; and Summary Offences Act 1981, s 9: maximum penalty six months’ imprisonment or a $4,000 fine.
3      Summary Offences Act 1981, s 11(1)(a): maximum penalty three months’ imprisonment or a
$2,000 fine.
4      Section 3: maximum penalty three months’ imprisonment or a $2,000 fine.
5      Section 23(a): maximum penalty three months’ imprisonment or a $2,000 fine.
6      Crimes Act 1961, s 219 and 223(d): maximum penalty three months’ imprisonment.
7      Summary Offences Act 1981, s 4(1)(b): maximum penalty $1,000 fine.
8      Crimes Act 1961, s 306: maximum penalty seven years’ imprisonment.
9      Section 269(2)(a): maximum penalty seven years’ imprisonment.
10     Summary Offences Act 1981, s 13A: maximum penalty three months’ imprisonment or a $2,000 fine.
11     Section 29(1)(a): maximum penalty three months’ imprisonment or a $2,000 fine.
12     Section 21(1)(a): maximum penalty three months’ imprisonment or a $2,000 fine.
13     Section 11(1)(a): maximum penalty three months’ imprisonment or a $2,000 fine.
14     Section 4(1)(b): maximum penalty $1,000 fine.
15     Section 11(1)(a): maximum penalty three months’ imprisonment or a $2,000 fine.
16     Section 29(1)(a): maximum penalty three months’ imprisonment or a $2,000 fine.
17     Crimes Act 1961, s 306: maximum penalty seven years’ imprisonment.
18     Section 202C: maximum penalty five years’ imprisonment.

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 Police

Details

AGLC: McMichael v Police [2023] NZHC 1725
Case: [2023] NZHC 1725
Decision Date: 5 July 2023

CaseChat Overview and Summary

In McMichael v Police, the High Court addressed two questions of law regarding the Criminal Procedure (Mentally Impaired Persons) Act 2003, arising from separate sets of charges against Brendon Murray McMichael in 2021 and 2022. The first question pertained to whether a judge had jurisdiction to deem not guilty pleas when a fitness to stand trial assessment was underway. The second question explored whether it was in the interests of the defendant to postpone a fitness to stand trial determination and remand the defendant in custody solely due to the unavailability of a hospital bed.

The first legal issue centered on the process under the Criminal Procedure (Mentally Impaired Persons) Act 2003. Specifically, the court had to determine if a presiding judge had the jurisdiction to enter deemed not guilty pleas when a health assessment to determine fitness to stand trial had been initiated. The second issue required the court to assess whether it was in the interests of the defendant to postpone a fitness to stand trial determination and remand the defendant in custody, solely due to the unavailability of a hospital bed, under the Criminal Procedure (Mentally Impaired Persons) Act 2003.

In its judgment, the court found that the presiding judge did not have the jurisdiction to enter deemed not guilty pleas once the process to determine whether Mr McMichael was unfit to stand trial had been started. The court concluded that the statutory scheme did not indicate that the provisions regarding pleas do not apply when the fitness process is engaged. However, the court acknowledged that it may be unwise to make inquiries about pleas when the fitness process is engaged, but there is no lack of jurisdiction to do so. Regarding the second question, the court ruled that it cannot be in the interests of the defendant to postpone the determination of fitness to stand trial and remand the defendant in custody "solely" because there is no hospital bed available. However, determining the circumstances in which postponement might be in the interests of the defendant was beyond the scope of the question.

The High Court concluded that the answer to each question of law was "no," with the qualifications expressed.

Orders