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McMichael v Police

McMichael v Police

Case [2023] NZHC 401 6 March 2023

Jurisdiction

Appeal

Detention

Unconscionable Conduct

Criminal Law

Administrative Law

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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…

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 401
Case: [2023] NZHC 401
Decision Date: 6 March 2023

CaseChat Overview and Summary

In McMichael v Police, Mr McMichael sought leave to appeal to the High Court on questions of law arising in respect of two sets of charges. The first set of charges resulted in a guilty plea and a sentence of four months’ imprisonment. The second set of charges were stayed as Mr McMichael was unfit to stand trial. Mr McMichael sought to question the legality of the decisions which resulted in his being held in custody for longer than he believed he should have been. The Court was required to determine whether there was jurisdiction for such an appeal. The Court considered the scope of the appeal court’s powers in s 300(1) of the Criminal Procedure Act 2011 and concluded that the decisions about Mr McMichael’s remand in custody subsequent to the 30-day period were 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. However, there was jurisdiction to consider leave to appeal on questions of law arising from the entry of a not guilty plea and the use of the power under s 8 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to postpone the determination of fitness to stand trial if it is in the interests of the defendant to do so. Mr McMichael was to advise the Court within 10 working days of this decision as to whether he wished to pursue his application for leave to appeal in respect of these questions. If leave to appeal was to be pursued, counsel were to file memoranda addressing whether the application for leave should be dealt with on the papers and, in any event, addressing proposed timetabling orders.

Orders