Richard Horton McKay v The Queen

[2011] NZSC 120

IN THE SUPREME COURT OF NEW ZEALAND

SC 90/2011
[2011] NZSC 120

RICHARD HORTON MCKAY

v

THE QUEEN

Court:             Tipping, McGrath and William Young JJ

Counsel:         M A Kennedy for Applicant
M D Downs for Crown

Judgment:      6 October 2011

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS

1. The applicant was convicted on four counts of robbery.  His appeal to the Court of Appeal was dismissed.[1]  The present application is filed well out of time, almost two years after the delivery of the judgment of the Court of Appeal. 

   [1]McKay v R [2009] NZCA 378, [2010] 1 NZLR 441.

2. The point which the applicant seeks to raise is a failure by the trial Judge to follow the procedure set out in s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.  The Court of Appeal considered that the Judge had not followed the requirement set out in that section which requires a Judge to determine, before considering a defendant’s fitness to stand trial, whether on the balance of probabilities the evidence against him was sufficient to establish that he caused an act or omission that formed the basis of the offence with which he was charged.  The Court of Appeal held that, despite the Judge not following that procedure, he had nevertheless proceeded broadly along the lines which the statute envisaged and had addressed the key point of fitness to stand trial.  In doing so he had acted on the basis of three psychiatric reports, two of which concluded that the applicant was fit to stand trial and the third of which was less clear.  The applicant’s proposed appeal does not seek to challenge that assessment of the Judge. 

3. It is perfectly apparent from the evidence led at trial that the applicant was physically implicated in the offences with which he was charged.  His defence was that he had not intended to keep the monies which he took from the four banks which were the subject of the robberies.  In these circumstances the failure of the Judge to follow the statutory procedure cannot possibly have occasioned any miscarriage of justice as the point was, on the applicant’s own case, beyond argument.  Furthermore, there is no sufficient explanation as to why the application for leave to appeal is substantially out of time, and the point at issue is not, in context, one of general or public importance. 

4. For these reasons the application must be dismissed.

Solicitors:
Crown Law Office, Wellington