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 and insanity had been filed and both

2      Police v Moheed [2017] NZHC 83 at [17].

3      Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321, at [45]-[46].

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.4 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.5 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 hospital bed was available, ruling that it was in the “interests of the defendant” to   do so.6

[7]Mr Nicholls, for Mr McMichael, originally proposed the question:

Where there is sufficient evidence before a Court to support a finding that a defendant is unfit to stand trial and needs treatment for mental ill health in a hospital, as a matter of law under s 8(1) of the CP (MIP) Act, can it ever be in the interests of the defendant to postpone the determination of the question of fitness and remand a defendant into custody on the sole ground there is no hospital bed available?

[8]                 Following my observation that the proposed question was phrased too broadly, Mr Nicholls proposed the following:

Where there is sufficient evidence before a Court to support a finding that a defendant is unfit to stand trial and needs treatment for mental health in a hospital, as a matter of law under section 8(1) of the CP (MIP) Act, what criteria can properly be considered to determine whether it is in the interests of the defendant to postpone the determination of the question of fitness and therefore further remand a defendant in custody?

[9]Leave is granted to appeal on the following question of law:

4      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 23(2).

5      Criminal Procedure (Mentally Impaired Persons) Act 2003, s 4; and Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 9.

6      Section 8(1).

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.

Result

[10]             Leave to appeal on the two questions of law as set out at [5] and [9] of this judgment is granted.

[11]             Counsel are to confer and advise the Registrar within five working days of the date of this judgment of the estimated time required for hearing. The Registrar is directed to then allocate a fixture for the hearing of the appeal.

[12]             The appellant’s submissions are to be filed and served ten working days before the appeal hearing and the respondent’s submissions five working days before the appeal hearing.

Thomas J

Solicitors:
Crown Law, Wellington