McMichael v Police
[2023] NZHC 401
•6 March 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 401
BETWEEN BRENDON MURRAY MCMICHAEL
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 February 2023 (by teleconference) Counsel:
C J Nicholls for Appellant C Brook for Respondent
Judgment:
6 March 2023
JUDGMENT OF THOMAS J
[1] Mr McMichael seeks leave to appeal to the High Court on questions of law arising in respect of two sets of charges. On the first, following the reports of two health assessors concluding that he was fit to stand trial, he pleaded guilty and was sentenced to four months’ imprisonment. On the second, the District Court was satisfied on the balance of probabilities that Mr McMichael caused the acts or omissions that formed the basis of the offences with which he was charged but he was unfit to stand trial.1 Mr McMichael was made the subject of a compulsory treatment order as an in-patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 and the criminal proceedings were stayed.
[2] Mr McMichael seeks leave to appeal to the High Court on questions of law pursuant to s 296 of the Criminal Procedure Act 2011. The questions of law relate to,
1 Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 7 and 8A.
MCMICHAEL v POLICE [2023] NZHC 401 [6 March 2023]
in general terms, the period he was detained in custody while the health assessment reports which had been ordered under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CP (MIP) Act) were being completed. He seeks to question the legality of the decisions which resulted in his being held in custody for what he says is a much longer period than it should have been.
[3] The issue addressed in this decision is whether there is jurisdiction for such an appeal.
Mr McMichael’s custody issues
First set of charges
[4] The appellant appeared in the District Court on 1 July 2021 in respect of numerous charges. Concerns were expressed as to Mr McMichael’s fitness to stand trial. As a result, on 20 July 2021, assessment reports were ordered under s 38(1)(a) and (b) of the CP (MIP) Act. The appellant remained in custody until 25 November, when the Judge noted that, while one report had been prepared, the second report would not be available until late December. Because he would have already served more than any sentence of imprisonment the Court would have imposed in respect of the charges, the Judge granted bail. The second assessment report was filed with the Court on 11 January 2022 and confirmed the appellant was fit to plead. He pleaded guilty and was sentenced to time served.
Second set of charges
[5] Bail was refused on Mr McMichael’s first appearance on numerous charges on 11 April 2022. The Judge ordered assessment reports under s 38 of the CP (MIP) Act on his fitness to plead and/or an insanity defence. He was remanded in custody until 10 May 2022, on the basis that the total period of detention under ss 38(2)(b) or (c) and 40 of the CP (MIP) Act cannot exceed 30 days. Two days later, on 13 April 2022, Mental Health Services asked the Court for an additional seven-week extension of time until 28 June 2022 to produce the reports.
[6] On 10 May, Mr McMichael appeared before the District Court seeking the dismissal of the charges under s 147 of the Criminal Procedure Act by reason of abuse of process. He also sought bail. Both applications were declined. The Judge found that Mr McMichael had not discharged the onus on him under s 12 of the Bail Act 2000.
High Court
[7] In an appeal on the second set of charges,2 the High Court determined that there is no requirement s 38 reports must be completed within 30 days. The Judge noted that Mr McMichael was not bailable as of right.3 Bail was declined on his first appearance and there had been no material change in his circumstances when he reappeared and bail was declined. No order could be made that a person be detained in a prison or secure facility if they would have been released on bail but, in Mr McMichael’s case, he would not have been released on bail and there was still an ongoing need for an assessment report.4 There was no abuse of process justifying the dismissal of the charges.
Court of Appeal
[8] Mr McMichael then applied to the Court of Appeal for leave to bring a second appeal. In the end, the Court’s judgment focused on jurisdiction.5
[9] Mr McMichael’s appeal to the High Court had been brought as an application for leave to appeal a question of law under s 296 of the Criminal Procedure Act. However, the District Court had declined to dismiss the charges against Mr McMichael. Therefore, because the charges had not been determined, the High Court lacked the jurisdiction to hear the appeal. This was overlooked by the parties in the High Court.
[10] Because there was no jurisdiction for the appeal to the High Court, there was no jurisdiction for the second appeal to the Court of Appeal.
2 McMichael v Police [2022] NZHC 1920.
3 CP (MIP) Act, s 38(3)(a).
4 CP (MIP) Act, s 38(3)(b).
5 McMichael v Police [2022] NZCA 647.
[11] The Court of Appeal noted that, by the time the question of leave to appeal was before it, the charges had been stayed as Mr McMichael was being treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992. This development did not change the Court’s analysis as the particular decision Mr McMichael wished to appeal did not relate to or follow the determination of the charges (the High Court decision was dated prior to the charges being stayed), even if the subsequent stay was considered to “determine” a charge, about which the Court of Appeal expressed no view.
Proposed questions of law
[12]The questions of law in respect of the first set of charges are:
1.When a criminal defendant faces charges and [is] brought before the Court and there is a reasonable uncertainty as to whether the defendant will be fit to stand trial, and the defendant is not bailable as of right, and based on the information before the court there is just cause of continued detention so to remand the defendant in custody, and where the Court has made an order pursuant to s 38(2)(b) of the CP (MIP) Act that health assessors reports be obtained on the issue of fitness to stand trial, does the combined effect of s 38(2)(b), s 38(3)(a) and s 40 Criminal Procedure [(Mentally Impaired Persons)] Act 20036 mean that the health assessors reports have to be completed within a maximum period of 30 days whilst the defendant is detained in prison?
2.Did the Presiding Judge have jurisdiction on 27 July 2021 to further remand the appellant in custody to 16 September 2021, being 51 days, having regard to s 38(2)(b), s 38(3)(a) and s 40 Criminal Procedure (Mentally Impaired Persons) Act 2003?
3.Did the Presiding Judge have jurisdiction to deem not guilty pleas to be entered to the charges on 27 July 2021, notwithstanding at the earlier appearance on 20 July 2021 the Presiding Judge had directed two health assessment reports be prepared to address fitness and insanity? And
4.Did the Presiding Judge have jurisdiction on 16 September 2021 to remand the appellant in custody through until 14 October 2021, and then on 14 October 2021 through to 25 November 2021 having regard to s 38(2)(b), s 38(3)(a) and s 40 Criminal Procedure [(Mentally Impaired Persons)] Act 2003?
[13]The questions of law on the second set of charges are:
6 The questions of law as originally written mistakenly referred to the Criminal Procedure Act rather than the Criminal Procedure (Mentally Impaired Persons) Act.
1.When a criminal defendant faces charges and [is] brought before the Court and there is a reasonable uncertainty as to whether the defendant will be fit to stand trial, and the defendant is not bailable as of right, and based on the information before the court there is just cause of continued detention so to remand the defendant in custody, and where the Court has made an order pursuant to s 38(2)(b) of the CP (MIP) Act that health assessors reports be obtained on the issue of fitness to stand trial, does the combined effect of s 38(2)(b), s 38(3)(a) and s 40 Criminal Procedure [(Mentally Impaired Persons)] Act 2003 mean that the health assessors reports have to be completed within a maximum period of 30 days whilst the defendant is detained in prison?
2.Did the Presiding Judge have jurisdiction on 10 May 2022 to remand the appellant in custody through until 28 June 2022, and then on 28 June 2022 through to 30 August 2022 and then on 30 August 2022 through to 28 September 2022 having regard to s 38(2)(b), s 38(3)(a) and s 40 Criminal Procedure [(Mentally Impaired Persons)] Act 2003?
3.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 section 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 in custody on the sole ground there is no hospital bed available?
[14] The respondent opposes the appeal on the basis there is no jurisdiction for an appeal under s 296 of the Criminal Procedure Act and the only way in which these questions could come before the High Court in the circumstances would be via an application for judicial review.
Submissions
[15] The issue for this decision concerns the interpretation of s 296(3) of the Criminal Procedure Act, which provides:
(3)The question of law in a first appeal under this subpart must arise—
(a)in proceedings that relate to or follow the determination of the charge; or
(b)in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).
[16] In Mr Nicholls’ submission for Mr McMichael, both sets of charges have been determined. Mr McMichael was convicted and sentenced on the first and the
proceedings stayed under the second. That amounts to a determination in the context of them having been “finalised”.
[17] Mr Nicholls rejected the respondent’s submission that the proper course would have been for Mr McMichael to apply for judicial review of the decisions which resulted in him being held in custody while the processes under the CP (MIP) Act to decide on his fitness to stand trial were being followed. Mr Nicholls refers to s 27(2) of the New Zealand Bill of Rights Act 1990 which provides:
(2) Every person whose rights, obligations, or interests protected or recognised by law have been affected by a determination of any tribunal or other public authority has the right to apply, in accordance with law, for judicial review of that determination.
[18] In Mr Nicholls’ submission, the reference in subs (2) to the right to judicial review for a person whose interests have been affected by a “determination” would, on the respondent’s analysis, mean he was unable to apply for judicial review of the decisions either.
[19] Mr Nicholls emphasised that the process issues referred to in the draft questions of law raise important issues with wide implications. Mr McMichael has commenced proceedings in the civil jurisdiction seeking damages under the New Zealand Bill of Rights Act in connection with what he maintains is the illegality of his treatment throughout the two sets of proceedings.
[20] In Ms Brook’s submission for the respondent, the decisions of concern to Mr McMichael do not relate to the determination of either set of charges. Rather, those decisions were taken before any determination. It would have been different, in her submission, had Mr McMichael sought to challenge the finding of fitness to stand trial or, for example, sought to vacate his guilty plea. In her submission, jurisdiction to appeal attaches to the decision at the time at which it is made.
[21] In response to the suggestion that the draft questions of law have or are in the process of being determined in the High Court, Mr Nicholls contended there was conflicting High Court authority. He referred to a hearing before a High Court Judge in 2022, when the Judge allegedly commented adversely on the way in which
Mr McMichael had been treated and the length of time for which he was remanded in custody. He accepted that judicial review proceedings which deal at least with the first proposed question of law have been heard and a decision is awaited (since delivered and discussed further below).7 He maintained the other questions remained live, however, despite a number of High Court decisions which address whether a defendant can continue to be held in custody despite the lapse of the 30-day remand period under the CP (MIP) Act. Mr Nicholls then referred to his proposed question as to whether Mr McMichael was lawfully held in custody following the finding he was unfit to stand trial because a hospital bed was not available.
[22] If I determine that Mr McMichael does have a right of appeal under s 296, a separate hearing will be required to answer the question of whether he should be granted leave to appeal on the proposed questions of law. Ms Brook confirmed there will be no objection to an extension of time to appeal in respect of the first set of charges.
Discussion
Section 296 of the Criminal Procedure Act
[23] The Court of Appeal in Anderson v R considered whether there was jurisdiction to hear an appeal against the refusal to allow a change of election to trial by jury. The Court held that the test under s 296(3) of the Criminal Procedure Act was whether there was a sufficiently close connection between the proceedings in which the question of law arose and the determination of the charge.8 The Court observed that it is not always easy to draw the line between those matters which seem to fall within a determination and those that do not. The retention of the language of “determination” and the availability of other remedies suggested an expansive view of s 296 was not required.9
7 Maaka-Wanahi v Attorney-General [2023] NZHC 187.
8 Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321, cited with approval in Maangi v R [2017] NZCA 156 at [25].
9 Anderson v R, above n 8, at [54].
[24] The Court considered the scope of the appeal court’s powers in s 300(1) was relevant. Those powers suggest that what is in issue is a decision which brings an end to matters.10
[25] The Court concluded there was jurisdiction in that case because the decision as to whether a trial is to be before a judge alone or by jury is closely linked to disposition or determination. It decides who will be the decision maker.
[26] The learned authors of Adams on Criminal Law note it is possible to appeal under s 296 on a ruling made before or after the charge is determined. The requirement in subs 3(a) that the ruling “relate … to the determination of a charge” means there must be a sufficiently close connection between the proceedings in issue and the determination, albeit not necessarily a temporal connection.11
[27] The text provides several examples. The learned authors refer to Anderson v R and note that an appeal under s 296 will be available in relation to a judge’s refusal to grant leave to change an election.12 In contrast, there is no jurisdiction under s 296 to hear an appeal in relation to the steps proposed or taken by the parties to resolve a charge out of court, or the granting of leave to withdraw a charge because neither involves the determination of a charge.13
[28] In Maangi v R, during a hearing in the District Court under s 9 of the CP (MIP) Act, the District Court granted the police leave to withdraw a number of charges that had been laid against Ms Maangi. She was subsequently found fit to stand trial and those charges were re-laid. Ms Maangi appealed the ruling granting police leave to withdraw the charges, arguing that the Judge had no power to grant leave to the prosecutor to withdraw the charges and was obliged to dismiss them for insufficient evidence or determine the s 9 question on the material before him. The Court of Appeal explained that where, following a s 9 hearing, the Court is not satisfied of the
10 Although, as noted by the Court of Appeal, this point cannot be taken too far because of the catch- all provision in s 300(1)(e) which enables the Court to make any other order it considers justice requires – at [44].
11 Simon France (ed) Adams on Criminal Law (Thomson Reuters, New Zealand) at [CPA269.02(3)].
12 At [CPA269.02(3)]. See Anderson v R, above n 8, at [41]-[42].
13 See Linfox Logistics (NZ) Ltd v WorkSafe New Zealand [2018] NZHC 583 at [13] and [17]; and
Paice v Police [2018] NZHC 1548 at [15].
s 9 questions, the Court must dismiss the charge – a deemed acquittal. The question of law was therefore sufficiently closely connected to the determination of the charge to satisfy the jurisdictional requirement of s 296(3) of the Criminal Procedure Act.14
Is there a sufficiently close connection between the proceedings in which the question of law arose and the determination of the charges?
[29] Mr Nicholls’ arguments on s 296(3)(a) centre on whether the charges have been determined. The relevant consideration in this case,15 however, is whether the question of law arises in proceedings that relate to the determination of the charge.16 The purpose of the section is to allow appeals against decisions with a sufficiently close connection to the determination.
[30] Most of the draft questions of law relate to Mr McMichael’s detention in custody rather than to the determination of the charge which could include questions, for example, in relation to the decisions to order, or refuse to order, reports. A report results in a determination whether someone is fit to stand trial or is insane. This in turn relates to the determination of the proceedings as it enables the Court to decide whether there should be a stay of proceedings, or a continuation of the proceedings leading to either a conviction or an acquittal.
[31] However, the length of time it takes for reports to be produced and the length of time a person should be in custody while the reports are produced lack the requisite connection to the determination of the charge. These are matters of a defendant’s custodial status. A number of High Court decisions have confirmed that the jurisdiction to remand a defendant in custody when reports are not available within the 30-day period referred to in the CP (MIP) Act is governed by the Bail Act. As Simon France J made clear in Adams v Police, if the assessments ordered under s 38 are not completed within the statutory time period, then there are three options available to the Court:17
14 Maangi v R, above n 8, at [27].
15 Criminal Procedure Act, s 296(3)(a) also applies to questions of law that arise in proceedings which follow the determination of a charge.
16 Or follow. Or (3)(b) in the determination of the charge.
17 Adams v Police [2019] NZHC 3070, at [17].
(a)an extension of the s 38(2)(c) detention order under s 40 of CPMIP. Any such extension requires the consent of [the defendant];
(b)a remand on bail with conditions in place to enable the assessment;
(c)a remand in custody, with arrangements then needing to be made for the health professionals to have access to [the defendant] to complete the assessments.
[32]This approach has been followed in the subsequent cases of Rickard v Police
and P v Police.18
[33] Mr McMichael was not without a remedy as the various cases discussed have made clear. He could have applied for bail or appealed his custodial status.
[34] It is also pertinent at this point to refer to the recent High Court decision in Maaka-Wanahi v Attorney-General.19 In that decision, McQueen J addressed what she concluded was a misconception about the purpose of the timeframes in ss 38 and 40 of the CP (MIP) Act. She concluded that s 38 does not impose a specific timeframe within which reports must be provided following the making of an order under s 38. The 14-day period referred to in s 38(2)(b) and (c) refers to the period of detention for the purpose of an assessment and not the period within which a report must be completed. The 30-day timeframe referred to in s 40 refers to the period of detention permitted with the consent of the defendant or guardian and not the period within which a s 38 report must be completed.
Conclusion
[35] I conclude that the decisions about Mr McMichael’s remand in custody subsequent to the 30-day period are not sufficiently closely connected to the determination of his two sets of proceedings for there to be jurisdiction under s 296 of the Criminal Procedure Act to consider leave for him to appeal on questions of law arising from those decisions.
18 Rickard v Police [2021] NZHC 1033; P v Police [2023] NZHC 106. The circumstances of Rickard are analogous to those of Mr McMichael. Mr Rickard sought leave to appeal a question of law against the order further remanding him in custody. It does not appear that the jurisdictional issue of s 296 was raised with the Judge. This was also the approach taken by the High Court on Mr McMichael’s appeal in respect of the second set of charges.
19 Maaka-Wanahi v Attorney-General, above n 7.
[36] There are two questions which fall into a different category. The following proposed question of law relates to the first set of proceedings:
Did the Presiding Judge have jurisdiction to deem not guilty pleas to be entered to the charges on 27 July 2021, notwithstanding at the earlier appearance on 20 July 2021 the Presiding Judge had directed two health assessment reports be prepared to address fitness and insanity?
[37] The entry of a plea, guilty or not guilty, is integral to the determination of the charge.20 This question therefore appears to meet the requirements of s 296(3)(a). However, leave to appeal is required. There are no statutory criteria for the grant of leave but, at a minimum, there must be a properly identifiable and arguable question of law.21 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.22
[38] The not guilty plea was entered in the knowledge that assessment reports had been ordered to address Mr McMichael’s fitness to plead. He was subsequently found fit to plead and entered guilty pleas. In these circumstances, and without more to suggest there is any real point to the appeal, such as the extent of his discount at sentencing for his guilty plea, it is hard to avoid the conclusion that this proposed question is of academic interest only.
[39] The following proposed question of law relates to the second set of proceedings:
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 section 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 in custody on the sole ground there is no hospital bed available?
[40] This proposed question raises issues about the use of the power under s 8 of the CP (MIP) Act to postpone the determination of fitness to stand trial if it is in the interests of the defendant to do so. I consider that question of law did arise in proceedings that related to the determination of the second set of charges and was
20 Judges enter deemed not guilty pleas for various reasons and a case cannot progress to a case review unless a defendant pleads not guilty. Criminal Procedure Act, s 54.
21 Police v Moheed [2017] NZHC 83 at [17].
22 Anderson v R, above n 8, at [45]-[46].
closely linked to the disposition. I do note, however, that the proposed question is very broadly worded, asking if it will ever be in the interests of a defendant to remand a person in those circumstances in custody because there is no hospital bed available. The framing of a proposed question of law is, of course, an important consideration in deciding leave to appeal.23 The other observations in this judgment and the decisions referred to about the timing of assessment reports under the CP (MIP) Act and the custodial status of those in respect of whom assessment reports are ordered will no doubt have a bearing on whether Mr McMichael pursues his application for leave to appeal on this question.
Result
[41] There is no jurisdiction to appeal in respect of the proposed questions 1, 2 and 4 relating to the first set of proceedings or proposed questions 1 and 2 relating to the second set of proceedings.
[42] Mr McMichael is to advise the Court within 10 working days of this decision as to whether he wishes to purse his application for leave to appeal in respect of proposed question 3 relating to the first set of proceedings and/or proposed question 3 relating to the second set of proceedings.
[43] If leave to appeal is to be pursued, counsel are to file memoranda (joint if possible) addressing whether the application for leave should be dealt with on the papers and, in any event, addressing proposed timetabling orders.
Thomas J
Solicitors:
Crown Law, Wellington
23 Section 299 of the Criminal Procedure Act 2011 gives the first appeal court the power to amend or restate the question at any time before it is determined. See also R v Antonievic [2013] NZCA 483, [2013] NZLR 806 at [43].
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