MCMICHAEL v POLICE [2023] NZHC 1725

MCMICHAEL v POLICE [2023] NZHC 1725 [5 July 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2022-485-71CRI-2022-485-72[2023] NZHC 1725BETWEEN BRENDON MURRAY MCMICHAELAppellantAND NEW ZEALAND POLICERespondentHearing: 30 May 2023Appearances: C J Nicholls for the AppellantC A Brook for the RespondentJudgment: 5 July 2023JUDGMENT OF GAULT JThis judgment was delivered by me on 5 July 2023 at 3:00 pm.Registrar/Deputy RegistrarSolicitors / Counsel:Mr C J Nicholls, Barrister & Solicitor, Lower HuttMs C A Brook, Crown Law, Wellington[1] Mr McMichael was granted leave to appeal on two questions of law pursuantto s 296 of the Criminal Procedure Act 2011 (CPA) by Thomas J on 12 May 2023.1Both questions relate to the process under the Criminal Procedure (Mentally ImpairedPersons) Act 2003.[2] The questions of law arise in relation to separate sets of charges faced byMr McMichael in 2021 and 2022 respectively.[3] The 2021 charges, relating to separate incidents on 2, 29 and 30 June 2021,comprised common assault (x2),2 wilful damage,3 disorderly behaviour likely to causeviolence4 and resisting police5 (on 2 June 2021); shoplifting6 and obscene language7(on 29 June 2021); and threatening to kill,8 intentional damage,9 possession of aknife,10 unlawfully being in a building,11 behaving threateningly,12 wilful damage13and obscene language14 (on 30 June 2021).[4] The 2022 charges, relating to incidents in February and April 2022, comprisedwilful damage15 and unlawfully being in a building16 (between 7 and 13 February2022); and threatening to kill,17 assault with a weapon18 and disorderly behaviour19(on 6 April 2022).1 McMichael v Police [2023] NZHC 1125.2 Crimes Act 1961, s 196: maximum penalty one year imprisonment; and Summary Offences Act1981, s 9: maximum penalty six months' imprisonment or a $4,000 fine.3 Summary Offences Act 1981, s 11(1)(a): maximum penalty three months' imprisonment or a$2,000 fine.4 Section 3: maximum penalty three months' imprisonment or a $2,000 fine.5 Section 23(a): maximum penalty three months' imprisonment or a $2,000 fine.6 Crimes Act 1961, s 219 and 223(d): maximum penalty three months' imprisonment.7 Summary Offences Act 1981, s 4(1)(b): maximum penalty $1,000 fine.8 Crimes Act 1961, s 306: maximum penalty seven years' imprisonment.9 Section 269(2)(a): maximum penalty seven years' imprisonment.10 Summary Offences Act 1981, s 13A: maximum penalty three months' imprisonment or a $2,000fine.11 Section 29(1)(a): maximum penalty three months' imprisonment or a $2,000 fine.12 Section 21(1)(a): maximum penalty three months' imprisonment or a $2,000 fine.13 Section 11(1)(a): maximum penalty three months' imprisonment or a $2,000 fine.14 Section 4(1)(b): maximum penalty $1,000 fine.15 Section 11(1)(a): maximum penalty three months' imprisonment or a $2,000 fine.16 Section 29(1)(a): maximum penalty three months' imprisonment or a $2,000 fine.17 Crimes Act 1961, s 306: maximum penalty seven years' imprisonment.18 Section 202C: maximum penalty five years' imprisonment.19 Summary Offences Act 1981, s 4(1)(a): maximum penalty $1,000 fine.Background and questions of law[5] The relevant background and the two questions of law were summarised inThomas J's leave judgment:First question of law[4] Mr McMichael appeared in the District Court on 1 July 2021 inrespect of a number of charges. Concerns were expressed as to whether theremight 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 reportsunder s 38(1)(a) and (b) of the Criminal Procedure (Mentally ImpairedPersons) Act 2003 (CP (MIP) Act), to assist the Court to determine whetherMr McMichael was unfit to stand trial, or whether Mr McMichael was insanewithin the meaning of s 23 of the Crimes Act 1961. He was remanded incustody. On 27 July 2021, Mr McMichael appeared in the District Court,representing himself. He was abusive to the Judge. The Judge deemed notguilty pleas to be entered to all charges (notwithstanding the issues of insanityand fitness to plead had not yet been assessed) and remanded him in custodyto 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 beentered to the charges on 27 July 2021, notwithstanding that at theearlier appearance on 20 July 2021 the Presiding Judge had directedtwo health assessment reports be prepared to address fitness to standtrial and insanity?Second question of law[6] In 2022, Mr McMichael faced another set of charges. Two healthassessment reports under s 38(1)(a) and (b) of the CP (MIP) Act were orderedon 11 April 2022. Mr McMichael appeared in the District Court on28 September 2022, by which time both s 38 reports addressing fitness tostand trial and insanity had been filed and both reports concluded thatMr McMichael was unfit to stand trial. Because no hospital bed was available,the Judge postponed the determination of whether Mr McMichael was unfitto 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 inquiriesbe made to determine the most suitable method of dealing with the personunder ss 24 or 25. For the purposes of the inquiries, the Court must eithermake it a condition of a grant of bail that the person go to a place approved bythe Court for the purpose of the inquiries or remand the person to a hospitalor a secure facility.20 A secure facility is a place with particular securityfeatures used to provide care to those with an intellectual disability and is nota prison.21 Mr McMichael could not discharge the s 12 reverse onus under theBail Act 2000 to satisfy the Court that he should be bailed, and no hospital bedwas available. The Judge therefore adjourned the fitness hearing until a20 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 23(2).21 Section 4; and Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 9.hospital bed was available, ruling that it was in the "interests of the defendant"to do so.22[9] Leave is granted to appeal on the following question of law:If there is the evidence of two health assessors before a Court tosupport a finding that a defendant is unfit to stand trial, is it in theinterests of the defendant, under s 8(1) of the Criminal Procedure(Mentally Impaired Persons) Act 2003, to postpone the determinationof the defendant's fitness to stand trial and remand the defendant incustody solely because there is no hospital bed available toaccommodate the defendant for the purposes of the s 23 inquiries?First question of law[6] I understand the District Court appearance on 27 July 2021 was by telephonefrom the prison to address the issue of representation. Mr Nicholls, for Mr McMichael,advised that although counsel from the Public Defence Service had been assigned,he had been sacked and Mr McMichael represented himself at the appearance.[7] Although the answer to the question of law does not depend onMr McMichael's health at the time nor on subsequent events, Mr Nicholls advised thatMr McMichael was very unwell – a paranoid schizophrenic – and had been put in themanagement unit of the prison as he had been threatening to kill people. He wassubsequently transferred to hospital. After some delay in obtaining the s 38 reports,Mr McMichael was found fit to stand trial. He then pleaded guilty and on 11 January2022 was sentenced to four months' imprisonment (which he had already served).23[8] Ms Brook, for the Police, noted that the leave decision did not address thePolice submission that this question of law is moot. She advised that submission wasnot abandoned but that the Police agree I can simply proceed to answer the questiongiven that leave has been granted.[9] Mr Nicholls submitted that once the process to determine whetherMr McMichael was unfit to stand trial was started on 20 July 2021 with s 38 reportsordered by Judge Morris, that process could not stop until it was finished.22 Section 8(1).23 Police v McMichael [2023] NZDC 184.Accordingly, when Mr McMichael appeared on 27 July 2021 the Judge had nojurisdiction to enter deemed not guilty pleas.[10] Mr Nicholls referred to the prerequisites for a deemed not guilty plea.A deemed not guilty plea arises under s 41 of the CPA:If the defendant refuses to plead, or fails to plead, when required to do so undersection 39 or 49(3), the defendant is deemed to have pleaded not guilty.[11] Section 39 of the CPA relevantly provides:39 Requirement for defendant to plead(1) If the defendant has not pleaded to a charge under section 37 or 38,the court may require a defendant to plead if the court is satisfied thatthe defendant has had initial disclosure in accordance with section12(1) of the Criminal Disclosure Act 2008.(2) The defendant may plead either guilty or not guilty, or enter a specialplea.(3) If the defendant is not represented by a lawyer,—(a) the court must be satisfied that the defendant—(i) has been informed of his or her rights to legalrepresentation, including the right to apply for legalaid under the Legal Services Act 2011; and(ii) has fully understood those rights; and(iii) has had a reasonable opportunity to exercise thoserights; and(b) the substance of the charge must be read to the defendant.[12] As Ms Brook noted, the Judge on 27 July 2021 was evidently simply lookingto terminate an abusive and unproductive telephone hearing. There is no evidence ofany step being taken to comply with s 39 before the Judge recorded deemed not guiltypleas. Ms Brook accepted that for this reason the Judge did not have jurisdiction toenter deemed not guilty pleas.[13] However, Ms Brook did not accept that the lack of jurisdiction was due to theorder for s 38 reports the week before. She submitted there is nothing in the statutoryscheme indicating that ss 39 and 41 do not apply when the CP (MIP) process isengaged, which she submitted is likely because these provisions are purely proceduralin the sense that a matter cannot proceed to a case review hearing without a plea ordeemed plea. She acknowledged that it may be unwise to make s 39 inquiries whenthe CP (MIP) process is engaged but submitted there is no lack of jurisdiction to do soin the sense that ordering s 38 reports does not bar making s 39 inquiries. Shesubmitted that s 39 itself contains protection for defendants under a fitness "cloud" butnoted that if a defendant is represented, no inquiry as to understanding of the rights tolegal representation is required. She also suggested there could be a scenario wherethe Judge knew that a defendant was seeking to raise fitness to 'game the system'.She submitted that since it is common ground that the Judge here lacked jurisdictionto record deemed not guilty pleas, it is moot and difficult to consider the position ifthe Judge had made the s 39 enquiries when he did not in fact do so.[14] The Court of Appeal has made clear in R v McKay and R v Te Moni that oncethe process under the CP (MIP) Act has been properly commenced, it must becompleted.24 Taking a plea or recording a deemed plea in the meantime seems fraughtwith difficulty. Those cases, however, did not concern taking pleas or recordingdeemed pleas. In any event, I do not consider that I should on this question of lawappeal seek to prescribe when, if at all, it might be appropriate to make s 39 inquiriesonce the fitness process has been triggered.[15] In the circumstances of this case at least, the answer to the first question of lawis "no".Second question of law[16] Mr Nicholls acknowledged that when Mr McMichael appeared in the DistrictCourt on 28 September 2022, the Judge was in a very difficult position. There weretwo s 38 reports concluding that Mr McMichael was unfit to stand trial and there wasno suggestion he was not involved in the alleged offending. As Thomas J said, unders 23 of the CP (MIP) Act, if a person is found unfit to stand trial, the Court must orderthat inquiries be made to determine the most suitable method of dealing with theperson under ss 24 or 25. For the purposes of the inquiries, the Court must either make24 R v McKay [2009] NZCA 378, [2010] 1 NZLR 441 and R v Te Moni [2009] NZCA 560 at [39].it a condition of a grant of bail that the person go to a place approved by the Court forthe purpose of the inquiries or remand the person to a hospital or a secure facility.A secure facility is a place with particular security features used to provide care tothose with an intellectual disability and is not a prison. Mr McMichael could notdischarge the s 12 reverse onus under the Bail Act 2000 to satisfy the Court that heshould be bailed, and no hospital bed was available.[17] In those circumstances, the Judge postponed the fitness determination, rulingthat it was in the "interests of the defendant" to do so and remanded Mr McMichael incustody until 4 October 2022 when the Judge understood a bed would be available.25At a further appearance in the District Court on 4 October 2022, Mr McMichael wasfound unfit to stand trial and remanded to hospital.[18] Section 8 of the CP (MIP) Act provides:8 Postponement of finding(1) A court may, if it thinks it is in the interests of the defendant to do so,postpone the determination of the question whether a defendant isunfit to stand trial.(2) However, at a trial, a court may not postpone the determination of thatquestion beyond the stage at which all the evidence is concluded.(3) When a court postpones the determination of the question whether adefendant is unfit to stand trial, the court may not determine thequestion if—(a) the defendant is acquitted; or(b) the charge is dismissed.[19] It is common ground that resourcing decisions should not affect the properinterpretation of the law, as McQueen J said in Maaka-Wanahi v Attorney-General,26but Ms Brook emphasised, and Mr Nicholls accepted, that the lack of a bed wasrelevant to the Judge's assessment of the circumstances.25 Minute of Judge I G Mill dated 28 September 2022.26 Maaka-Wanahi v Attorney-General [2023] NZHC 187 at [87]. McQueen J's decision that the timelimits referred to in ss 38(2) and 40 of the CP (MIP) Act relate to the period for which a personmay be detained for the purpose of assessment and do not set a time limit for preparing the s 38report and sending it to the court, was recently upheld by the Court of Appeal: Maaka-Wanahi vAttorney-General [2023] NZCA 217.[20] Mr Nicholls submitted the answer to this question of law has to be "no".He submitted it was plain on 28 September 2022 that it was not in the interests ofMr McMichael to remain in custody. He had been found to be unwell in two s 38reports. The interests of the defendant were that he receive treatment, not that he bedetained in prison. Mr Nicholls submitted the only lawful decision in thecircumstances was to proceed with the unfitness determination and remandMr McMichael to hospital. A person found to be unwell should not remain in prisonbecause a hospital bed is unavailable. Once in hospital, as opposed to prison,Mr McMichael's condition could be treated.[21] Mr Nicholls submitted it could only be in the interests of the defendant to beremanded in custody if further factual inquiries were being made as to whether thedefendant was involved in the offending. He relied on R v Codd,27 a decision of SimonFrance J, which is referred to in the following passage from Adams on Criminal Law:28CM8.01 Legislative backgroundSection 8 replaces s 110 of the Criminal Justice Act 1985, which allowedpostponement of a finding of fitness up to any time before the opening of thecase for the defence. The procedure is based on the common law andcorresponding provisions in the Criminal Procedure (Insanity) Act 1964 (UK).Although it is seldom used, the procedure was normally an issue where therewas a question of the case failing for want of evidence. The justification forthe procedure has been largely overtaken by the involvement hearingprocedure (see ss 9 and 10), requiring that responsibility for the actus reus ofa crime be tested following the making of a finding of unfitness.CM8.02 Trial strategyUnder the new section provision is made for a court to postpone a finding asto the defendant's fitness to stand trial until the point at which all the evidenceis concluded. The provision derives from a common law rule which wasaimed at securing the interests of a defendant to plan his or her trial strategy,especially when there was a prospect of a submission by the defence of nocase to answer. Clearly, if there was sufficient doubt as to whether theprosecution was able to prove the defendant's criminal responsibility, therewas a strategic advantage in avoiding engaging the therapeutic intervention ofan unfitness hearing, with its inevitable psychiatric disposition.27 R v Codd [2006] 3 NZLR 562 (HC).28 Mathew Downs (ed) Adams on Criminal Law – Procedure (online ed, Thomson Reuters) at[CM8.01].It is unclear the extent to which this procedure is actually invoked and there isno report of it having been used in New Zealand. In R v Codd [2006] 3 NZLR562 (HC), the Judge noted that s 8 sits comfortably with s 9. His Honour said,at [26]:"Read together, it is plain that the Court is to ensure that properscrutiny of the core allegation is made before an unfitness to pleaddetermination occurs. The Court's postponement power is not to beexercised in the wider interests of justice, but rather only if it is in thedefendant's interest to do so. The reference in 8(2) to the conclusionof evidence reinforces the view that the primary rationale forpostponement would be to allow fuller testing of the core allegationprior to making an unfitness to plead finding." (emphasis original)[22] Mr Nicholls acknowledged that Codd preceded the change in sequence underthe CP (MIP) Act whereby the involvement hearing is conducted after a defendant isfound unfit to stand trial. Although the sequence now may take away the need for afitness determination to be postponed for involvement reasons, the commentary doesnot suggest other reasons for doing so. However, as Ms Brook submitted, on the faceof the CP (MIP) Act there is nothing to limit postponement to cases where furtherinquiries about involvement are needed. Codd goes no further than referring to theprimary rationale.[23] Ms Brook submitted that what the Judge did was on its face lawful since therestriction on being in custody in a prison only takes effect once a finding of unfitnesshas been made, and the law permits postponement if it is in the defendant's interests.In the circumstances, faced with only three options (bail, hospital or postponement),the Judge had to decide which was in the defendant's best interests.[24] She submitted I could redraft the question of law because the word "solely"was inapt. She acknowledged it would never be in the defendant's interests to remandthe defendant in custody "solely" because there is no hospital bed available, but shesubmitted that is not what happened in this case since on the facts known to the Judgebail was not an option and a hospital bed was not available. She submitted thatwhether it is in the defendant's interests to be remanded in custody depends on all thecircumstances of the case.[25] I decline to redraft the question of law. It was deliberately framed with thewords "solely because there is no hospital bed available" so as to avoid an overly broadquestion about the circumstances in which it might be in the interests of the defendant,under s 8(1) of the CP (MIP) Act, to postpone the determination of the defendant'sfitness to stand trial and remand the defendant in custody. A better alternative questionof law was not proffered.[26] I accept the issue under s 8 is whether postponement is in the interests of thedefendant. It does not always follow that postponement will lead to remand in prison.But here, it is common ground that bail was not an option, so postponement didinevitably mean remaining in prison.[27] As Ms Brook accepted, whether postponement of a determination of unfitnessand remand in custody could be in the defendant's interests would depend on all thecircumstances. It is a factual inquiry. Ms Brook accepted that postponement andremand in custody because no hospital bed is available could only occur as a lastresort. That, however, would mean the Judge has to rule out not only bail but whethera hospital bed can be made available, which would put the Judge in the position ofhaving to test the hospital's resource allocation in order to assess whetherpostponement is in the defendant's interests.[28] In any event, I do not consider that I should seek to determine on this questionof law appeal the circumstances in which postponement of a determination of unfitnessand remand in custody could be in the defendant's interests.[29] My response to the second question is that, as Ms Brook acknowledged, itcannot be in the interests of the defendant, under s 8(1), to postpone the determinationof fitness to stand trial and remand the defendant in custody "solely" because there isno hospital bed available. All relevant factual circumstances must be considered.Therefore, the answer to the second question as framed is "no". However, determiningthe circumstances in which postponement (as a last resort) might be in the interests ofthe defendant is beyond the scope of the question.Result[30] Accordingly, the answer to each question of law is "no", with the qualificationsexpressed.________________________________Gault J