McMichael v Police - [2023] NZHC 1125

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 1125

BETWEEN
BRENDON MURRAY MCMICHAEL

Appellant

AND

NEW ZEALAND POLICE

Respondent

On the papers

Counsel:

C J Nicholls for Appellant C Brook for Respondent

Judgment:

12 May 2023

JUDGMENT OF THOMAS J

(LEAVE TO APPEAL ON QUESTION OF LAW)

Introduction

[1] Mr McMichael has applied for leave to bring an appeal on a number of questions of law under s 296 of the Criminal Procedure Act 2011.

[2] In my judgment dated 6 March 2023,1 I addressed whether there was jurisdiction to appeal in relation to a number of the proposed questions of law. I determined there was jurisdiction in respect of two proposed questions and now consider whether leave should be granted.

1 McMichael v Police [2023] NZHC 401.

MCMICHAEL v POLICE [2023] NZHC 1125 [12 May 2023]

Approach to appeal

[3] There are no statutory criteria governing the grant of leave to appeal but, at a minimum, there must be a properly identifiable and arguable question of law.2 The availability of alternative remedies, such as an appeal against conviction or judicial review, are relevant to the scope of appeals on questions of law.3

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…

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 1125
Case: [2023] NZHC 1125
Decision Date: 12 May 2023

CaseChat Overview and Summary

In McMichael v Police, the appellant, Brendon Murray McMichael, applied for leave to appeal on certain questions of law under section 296 of the Criminal Procedure Act 2011. The application followed an earlier judgment dated 6 March 2023, where the court had addressed whether there was jurisdiction to appeal regarding several proposed questions of law. The current judgment considers whether leave should be granted for the appeal of two specific questions of law.

The primary legal issues before the court involved the jurisdiction of the Presiding Judge to enter not guilty pleas on behalf of Mr McMichael on 27 July 2021, despite earlier orders for health assessments to address fitness to stand trial and insanity. Additionally, the court examined whether it is in the interests of a defendant to postpone the determination of their fitness to stand trial and remand them in custody solely due to the unavailability of a hospital bed for the required mental health inquiries.

The court concluded that leave to appeal should be granted on the following question of law: whether the Presiding Judge had jurisdiction to enter not guilty pleas on behalf of Mr McMichael on 27 July 2021, given the prior direction for health assessment reports to address fitness to stand trial and insanity. Furthermore, leave was granted on the question of whether it is in the interests of a defendant to postpone the determination of their fitness to stand trial and remand them in custody solely due to the unavailability of a hospital bed for the necessary mental health inquiries. The court's decision hinged on the interpretation of statutory provisions and the application of relevant legal principles.

The final orders of the court were that leave to appeal on the two specified questions of law was granted. Counsel were directed to confer and advise the Registrar within five working days of the date of this judgment regarding the estimated time required for the hearing. The Registrar was then to allocate a fixture for the hearing of the appeal. Additionally, the appellant's submissions were to be filed and served ten working days before the appeal hearing, with the respondent's submissions due five working days before the appeal hearing.

Orders