McMichael v Police
[2023] NZHC 1725
•5 July 2023
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.
19 Summary Offences Act 1981, s 4(1)(a): maximum penalty $1,000 fine.
Background and questions of law
[5] The relevant background and the two questions of law were summarised in Thomas J’s leave judgment:
First question of law
[4] Mr McMichael appeared in the District Court on 1 July 2021 in respect of a number of charges. Concerns were expressed as to whether there might be a defence of insanity and issues as to fitness to stand trial. As a result, on 20 July 2021, the presiding Judge ordered two health assessment reports under s 38(1)(a) and (b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP (MIP) Act), to assist the Court to determine whether Mr McMichael was unfit to stand trial, or whether Mr McMichael was insane within the meaning of s 23 of the Crimes Act 1961. He was remanded in custody. On 27 July 2021, Mr McMichael appeared in the District Court, representing himself. He was abusive to the Judge. The Judge deemed not guilty pleas to be entered to all charges (notwithstanding the issues of insanity and fitness to plead had not yet been assessed) and remanded him in custody to 16 September 2021 for the two health assessment reports to be completed.
[5]Leave is granted to appeal on the following question of law:
Did the Presiding Judge have jurisdiction to deem not guilty pleas be entered to the charges on 27 July 2021, notwithstanding that at the earlier appearance on 20 July 2021 the Presiding Judge had directed two health assessment reports be prepared to address fitness to stand trial and insanity?
Second question of law
[6] In 2022, Mr McMichael faced another set of charges. Two health assessment reports under s 38(1)(a) and (b) of the CP (MIP) Act were ordered on 11 April 2022. Mr McMichael appeared in the District Court on 28 September 2022, by which time both s 38 reports addressing fitness to stand trial and insanity had been filed and both reports concluded that Mr McMichael was unfit to stand trial. Because no hospital bed was available, the Judge postponed the determination of whether Mr McMichael was unfit to stand trial under s 8(1) of the CP (MIP) Act. Under s 23 of the CP (MIP) Act, if a person is found unfit to stand trial, the Court must order that inquiries be made to determine the most suitable method of dealing with the person under ss 24 or 25. For the purposes of the inquiries, the Court must either make it a condition of a grant of bail that the person go to a place approved by the Court for the purpose of the inquiries or remand the person to a hospital or a secure facility.20 A secure facility is a place with particular security features used to provide care to those with an intellectual disability and is not a prison.21 Mr McMichael could not discharge the s 12 reverse onus under the Bail Act 2000 to satisfy the Court that he should be bailed, and no hospital bed was available. The Judge therefore adjourned the fitness hearing until a
20 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 23(2).
21 Section 4; and Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 9.
hospital bed was available, ruling that it was in the “interests of the defendant” to do so.22
…
[9] Leave is granted to appeal on the following question of law:
If there is the evidence of two health assessors before a Court to support a finding that a defendant is unfit to stand trial, is it in the interests of the defendant, under s 8(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, to postpone the determination of the defendant’s fitness to stand trial and remand the defendant in custody solely because there is no hospital bed available to accommodate the defendant for the purposes of the s 23 inquiries?
First question of law
[6] I understand the District Court appearance on 27 July 2021 was by telephone from the prison to address the issue of representation. Mr Nicholls, for Mr McMichael, advised that although counsel from the Public Defence Service had been assigned, he had been sacked and Mr McMichael represented himself at the appearance.
[7] Although the answer to the question of law does not depend on Mr McMichael’s health at the time nor on subsequent events, Mr Nicholls advised that Mr McMichael was very unwell – a paranoid schizophrenic – and had been put in the management unit of the prison as he had been threatening to kill people. He was subsequently transferred to hospital. After some delay in obtaining the s 38 reports, Mr McMichael was found fit to stand trial. He then pleaded guilty and on 11 January 2022 was sentenced to four months’ imprisonment (which he had already served).23
[8] Ms Brook, for the Police, noted that the leave decision did not address the Police submission that this question of law is moot. She advised that submission was not abandoned but that the Police agree I can simply proceed to answer the question given that leave has been granted.
[9] Mr Nicholls submitted that once the process to determine whether Mr McMichael was unfit to stand trial was started on 20 July 2021 with s 38 reports ordered by Judge Morris, that process could not stop until it was finished.
22 Section 8(1).
23 Police v McMichael [2023] NZDC 184.
Accordingly, when Mr McMichael appeared on 27 July 2021 the Judge had no jurisdiction to enter deemed not guilty pleas.
[10] Mr Nicholls referred to the prerequisites for a deemed not guilty plea. A deemed not guilty plea arises under s 41 of the CPA:
If the defendant refuses to plead, or fails to plead, when required to do so under section 39 or 49(3), the defendant is deemed to have pleaded not guilty.
Section 39 of the CPA relevantly provides:
Requirement for defendant to plead
(1)If the defendant has not pleaded to a charge under section 37 or 38, the court may require a defendant to plead if the court is satisfied that the defendant has had initial disclosure in accordance with section 12(1) of the Criminal Disclosure Act 2008.
(2)The defendant may plead either guilty or not guilty, or enter a special plea.
(3)If the defendant is not represented by a lawyer,—
(a)the court must be satisfied that the defendant—
(i)has been informed of his or her rights to legal representation, including the right to apply for legal aid under the Legal Services Act 2011; and
(ii)has fully understood those rights; and
(iii)has had a reasonable opportunity to exercise those rights; and
(b)the substance of the charge must be read to the defendant.
[12] As Ms Brook noted, the Judge on 27 July 2021 was evidently simply looking to terminate an abusive and unproductive telephone hearing. There is no evidence of any step being taken to comply with s 39 before the Judge recorded deemed not guilty pleas. Ms Brook accepted that for this reason the Judge did not have jurisdiction to enter deemed not guilty pleas.
[13] However, Ms Brook did not accept that the lack of jurisdiction was due to the order for s 38 reports the week before. She submitted there is nothing in the statutory scheme indicating that ss 39 and 41 do not apply when the CP (MIP) process is
engaged, which she submitted is likely because these provisions are purely procedural in the sense that a matter cannot proceed to a case review hearing without a plea or deemed plea. She acknowledged that it may be unwise to make s 39 inquiries when the CP (MIP) process is engaged but submitted there is no lack of jurisdiction to do so in the sense that ordering s 38 reports does not bar making s 39 inquiries. She submitted that s 39 itself contains protection for defendants under a fitness “cloud” but noted that if a defendant is represented, no inquiry as to understanding of the rights to legal representation is required. She also suggested there could be a scenario where the Judge knew that a defendant was seeking to raise fitness to ‘game the system’. She submitted that since it is common ground that the Judge here lacked jurisdiction to record deemed not guilty pleas, it is moot and difficult to consider the position if the Judge had made the s 39 enquiries when he did not in fact do so.
[14] The Court of Appeal has made clear in R v McKay and R v Te Moni that once the process under the CP (MIP) Act has been properly commenced, it must be completed.24 Taking a plea or recording a deemed plea in the meantime seems fraught with difficulty. Those cases, however, did not concern taking pleas or recording deemed pleas. In any event, I do not consider that I should on this question of law appeal seek to prescribe when, if at all, it might be appropriate to make s 39 inquiries once the fitness process has been triggered.
[15] In the circumstances of this case at least, the answer to the first question of law is “no”.
Second question of law
[16] Mr Nicholls acknowledged that when Mr McMichael appeared in the District Court on 28 September 2022, the Judge was in a very difficult position. There were two s 38 reports concluding that Mr McMichael was unfit to stand trial and there was no suggestion he was not involved in the alleged offending. As Thomas J said, under s 23 of the CP (MIP) Act, if a person is found unfit to stand trial, the Court must order that inquiries be made to determine the most suitable method of dealing with the person under ss 24 or 25. For the purposes of the inquiries, the Court must either make
24 R v McKay [2009] NZCA 378, [2010] 1 NZLR 441 and R v Te Moni [2009] NZCA 560 at [39].
it a condition of a grant of bail that the person go to a place approved by the Court for the purpose of the inquiries or remand the person to a hospital or a secure facility. A secure facility is a place with particular security features used to provide care to those with an intellectual disability and is not a prison. Mr McMichael could not discharge the s 12 reverse onus under the Bail Act 2000 to satisfy the Court that he should be bailed, and no hospital bed was available.
[17] In those circumstances, the Judge postponed the fitness determination, ruling that it was in the “interests of the defendant” to do so and remanded Mr McMichael in custody until 4 October 2022 when the Judge understood a bed would be available.25 At a further appearance in the District Court on 4 October 2022, Mr McMichael was found unfit to stand trial and remanded to hospital.
[18]Section 8 of the CP (MIP) Act provides:
8 Postponement of finding
(1)A court may, if it thinks it is in the interests of the defendant to do so, postpone the determination of the question whether a defendant is unfit to stand trial.
(2)However, at a trial, a court may not postpone the determination of that question beyond the stage at which all the evidence is concluded.
(3)When a court postpones the determination of the question whether a defendant is unfit to stand trial, the court may not determine the question if—
(a)the defendant is acquitted; or
(b)the charge is dismissed.
[19] It is common ground that resourcing decisions should not affect the proper interpretation of the law, as McQueen J said in Maaka-Wanahi v Attorney-General,26 but Ms Brook emphasised, and Mr Nicholls accepted, that the lack of a bed was relevant to the Judge’s assessment of the circumstances.
25 Minute of Judge I G Mill dated 28 September 2022.
26 Maaka-Wanahi v Attorney-General [2023] NZHC 187 at [87]. McQueen J’s decision that the time limits referred to in ss 38(2) and 40 of the CP (MIP) Act relate to the period for which a person may be detained for the purpose of assessment and do not set a time limit for preparing the s 38 report and sending it to the court, was recently upheld by the Court of Appeal: Maaka-Wanahi v Attorney-General [2023] NZCA 217.
[20] Mr Nicholls submitted the answer to this question of law has to be “no”. He submitted it was plain on 28 September 2022 that it was not in the interests of Mr McMichael to remain in custody. He had been found to be unwell in two s 38 reports. The interests of the defendant were that he receive treatment, not that he be detained in prison. Mr Nicholls submitted the only lawful decision in the circumstances was to proceed with the unfitness determination and remand Mr McMichael to hospital. A person found to be unwell should not remain in prison because a hospital bed is unavailable. Once in hospital, as opposed to prison, Mr McMichael’s condition could be treated.
[21] Mr Nicholls submitted it could only be in the interests of the defendant to be remanded in custody if further factual inquiries were being made as to whether the defendant was involved in the offending. He relied on R v Codd,27 a decision of Simon France J, which is referred to in the following passage from Adams on Criminal Law:28
CM8.01 Legislative background
Section 8 replaces s 110 of the Criminal Justice Act 1985, which allowed postponement of a finding of fitness up to any time before the opening of the case for the defence. The procedure is based on the common law and corresponding provisions in the Criminal Procedure (Insanity) Act 1964 (UK). Although it is seldom used, the procedure was normally an issue where there was a question of the case failing for want of evidence. The justification for the procedure has been largely overtaken by the involvement hearing procedure (see ss 9 and 10), requiring that responsibility for the actus reus of a crime be tested following the making of a finding of unfitness.
CM8.02 Trial strategy
Under the new section provision is made for a court to postpone a finding as to the defendant’s fitness to stand trial until the point at which all the evidence is concluded. The provision derives from a common law rule which was aimed at securing the interests of a defendant to plan his or her trial strategy, especially when there was a prospect of a submission by the defence of no case to answer. Clearly, if there was sufficient doubt as to whether the prosecution was able to prove the defendant’s criminal responsibility, there was a strategic advantage in avoiding engaging the therapeutic intervention of an unfitness hearing, with its inevitable psychiatric disposition.
27 R v Codd [2006] 3 NZLR 562 (HC).
28 Mathew Downs (ed) Adams on Criminal Law – Procedure (online ed, Thomson Reuters) at [CM8.01].
It is unclear the extent to which this procedure is actually invoked and there is no report of it having been used in New Zealand. In R v Codd [2006] 3 NZLR 562 (HC), the Judge noted that s 8 sits comfortably with s 9. His Honour said, at [26]:
“Read together, it is plain that the Court is to ensure that proper scrutiny of the core allegation is made before an unfitness to plead determination occurs. The Court’s postponement power is not to be exercised in the wider interests of justice, but rather only if it is in the defendant’s interest to do so. The reference in 8(2) to the conclusion of evidence reinforces the view that the primary rationale for postponement would be to allow fuller testing of the core allegation prior to making an unfitness to plead finding.” (emphasis original)
[22] Mr Nicholls acknowledged that Codd preceded the change in sequence under the CP (MIP) Act whereby the involvement hearing is conducted after a defendant is found unfit to stand trial. Although the sequence now may take away the need for a fitness determination to be postponed for involvement reasons, the commentary does not suggest other reasons for doing so. However, as Ms Brook submitted, on the face of the CP (MIP) Act there is nothing to limit postponement to cases where further inquiries about involvement are needed. Codd goes no further than referring to the primary rationale.
[23] Ms Brook submitted that what the Judge did was on its face lawful since the restriction on being in custody in a prison only takes effect once a finding of unfitness has been made, and the law permits postponement if it is in the defendant’s interests. In the circumstances, faced with only three options (bail, hospital or postponement), the Judge had to decide which was in the defendant’s best interests.
[24] She submitted I could redraft the question of law because the word “solely” was inapt. She acknowledged it would never be in the defendant’s interests to remand the defendant in custody “solely” because there is no hospital bed available, but she submitted that is not what happened in this case since on the facts known to the Judge bail was not an option and a hospital bed was not available. She submitted that whether it is in the defendant’s interests to be remanded in custody depends on all the circumstances of the case.
[25] I decline to redraft the question of law. It was deliberately framed with the words “solely because there is no hospital bed available” so as to avoid an overly broad question about the circumstances in which it might be in the interests of the defendant, under s 8(1) of the CP (MIP) Act, to postpone the determination of the defendant’s fitness to stand trial and remand the defendant in custody. A better alternative question of law was not proffered.
[26] I accept the issue under s 8 is whether postponement is in the interests of the defendant. It does not always follow that postponement will lead to remand in prison. But here, it is common ground that bail was not an option, so postponement did inevitably mean remaining in prison.
[27] As Ms Brook accepted, whether postponement of a determination of unfitness and remand in custody could be in the defendant’s interests would depend on all the circumstances. It is a factual inquiry. Ms Brook accepted that postponement and remand in custody because no hospital bed is available could only occur as a last resort. That, however, would mean the Judge has to rule out not only bail but whether a hospital bed can be made available, which would put the Judge in the position of having to test the hospital’s resource allocation in order to assess whether postponement is in the defendant’s interests.
[28] In any event, I do not consider that I should seek to determine on this question of law appeal the circumstances in which postponement of a determination of unfitness and remand in custody could be in the defendant’s interests.
[29] My response to the second question is that, as Ms Brook acknowledged, 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. All relevant factual circumstances must be considered. Therefore, the answer to the second question as framed is “no”. However, determining the circumstances in which postponement (as a last resort) might be in the interests of the defendant is beyond the scope of the question.
Result
[30] Accordingly, the answer to each question of law is “no”, with the qualifications expressed.
Gault J
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