MCMICHAEL v POLICE [2023] NZHC 401

MCMICHAEL v POLICE [2023] NZHC 401 [6 March 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 401BETWEEN BRENDON MURRAY MCMICHAELAppellantAND NEW ZEALAND POLICERespondentHearing: 14 February 2023 (by teleconference)Counsel: C J Nicholls for AppellantC Brook for RespondentJudgment: 6 March 2023JUDGMENT OF THOMAS J[1] Mr McMichael seeks leave to appeal to the High Court on questions of lawarising in respect of two sets of charges. On the first, following the reports of twohealth assessors concluding that he was fit to stand trial, he pleaded guilty and wassentenced to four months' imprisonment. On the second, the District Court wassatisfied on the balance of probabilities that Mr McMichael caused the acts oromissions that formed the basis of the offences with which he was charged but he wasunfit to stand trial.1 Mr McMichael was made the subject of a compulsory treatmentorder as an in-patient under the Mental Health (Compulsory Assessment andTreatment) Act 1992 and the criminal proceedings were stayed.[2] Mr McMichael seeks leave to appeal to the High Court on questions of lawpursuant 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.in general terms, the period he was detained in custody while the health assessmentreports which had been ordered under the Criminal Procedure (Mentally ImpairedPersons) Act 2003 (the CP (MIP) Act) were being completed. He seeks to questionthe legality of the decisions which resulted in his being held in custody for what hesays is a much longer period than it should have been.[3] The issue addressed in this decision is whether there is jurisdiction for such anappeal.Mr McMichael's custody issuesFirst set of charges[4] The appellant appeared in the District Court on 1 July 2021 in respect ofnumerous charges. Concerns were expressed as to Mr McMichael's fitness to standtrial. 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 reportwould not be available until late December. Because he would have already servedmore than any sentence of imprisonment the Court would have imposed in respect ofthe charges, the Judge granted bail. The second assessment report was filed with theCourt on 11 January 2022 and confirmed the appellant was fit to plead. He pleadedguilty and was sentenced to time served.Second set of charges[5] Bail was refused on Mr McMichael's first appearance on numerous charges on11 April 2022. The Judge ordered assessment reports under s 38 of the CP (MIP) Acton his fitness to plead and/or an insanity defence. He was remanded in custody until10 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 oftime until 28 June 2022 to produce the reports.[6] On 10 May, Mr McMichael appeared before the District Court seeking thedismissal of the charges under s 147 of the Criminal Procedure Act by reason of abuseof process. He also sought bail. Both applications were declined. The Judge foundthat Mr McMichael had not discharged the onus on him under s 12 of theBail Act 2000.High Court[7] In an appeal on the second set of charges,2 the High Court determined that thereis no requirement s 38 reports must be completed within 30 days. The Judge notedthat Mr McMichael was not bailable as of right.3 Bail was declined on his firstappearance and there had been no material change in his circumstances when hereappeared and bail was declined. No order could be made that a person be detainedin a prison or secure facility if they would have been released on bail but, inMr McMichael's case, he would not have been released on bail and there was still anongoing need for an assessment report.4 There was no abuse of process justifying thedismissal of the charges.Court of Appeal[8] Mr McMichael then applied to the Court of Appeal for leave to bring a secondappeal. 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 applicationfor 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 againstMr McMichael. Therefore, because the charges had not been determined, theHigh Court lacked the jurisdiction to hear the appeal. This was overlooked by theparties in the High Court.[10] Because there was no jurisdiction for the appeal to the High Court, there wasno 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 wasbefore it, the charges had been stayed as Mr McMichael was being treated as a patientunder the Mental Health (Compulsory Assessment and Treatment) Act 1992. Thisdevelopment did not change the Court's analysis as the particular decisionMr McMichael wished to appeal did not relate to or follow the determination of thecharges (the High Court decision was dated prior to the charges being stayed), even ifthe subsequent stay was considered to "determine" a charge, about which the Court ofAppeal 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 theCourt and there is a reasonable uncertainty as to whether the defendantwill 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 ofcontinued detention so to remand the defendant in custody, and wherethe 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 tostand trial, does the combined effect of s 38(2)(b), s 38(3)(a) and s 40Criminal Procedure [(Mentally Impaired Persons)] Act 20036 meanthat the health assessors reports have to be completed within amaximum period of 30 days whilst the defendant is detained inprison?2. Did the Presiding Judge have jurisdiction on 27 July 2021 to furtherremand 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 tobe entered to the charges on 27 July 2021, notwithstanding at theearlier appearance on 20 July 2021 the Presiding Judge had directedtwo health assessment reports be prepared to address fitness andinsanity? And4. Did the Presiding Judge have jurisdiction on 16 September 2021 toremand the appellant in custody through until 14 October 2021, andthen on 14 October 2021 through to 25 November 2021 having regardto s 38(2)(b), s 38(3)(a) and s 40 Criminal Procedure [(MentallyImpaired 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 ratherthan the Criminal Procedure (Mentally Impaired Persons) Act.1. When a criminal defendant faces charges and [is] brought before theCourt and there is a reasonable uncertainty as to whether the defendantwill 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 ofcontinued detention so to remand the defendant in custody, and wherethe 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 tostand trial, does the combined effect of s 38(2)(b), s 38(3)(a) and s 40Criminal Procedure [(Mentally Impaired Persons)] Act 2003 meanthat the health assessors reports have to be completed within amaximum period of 30 days whilst the defendant is detained inprison?2. Did the Presiding Judge have jurisdiction on 10 May 2022 to remandthe appellant in custody through until 28 June 2022, and then on 28June 2022 through to 30 August 2022 and then on 30 August 2022through 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 findingthat a defendant is unfit to stand trial and needs treatment for mentalill 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 postponethe determination of the question of fitness and remand a defendant incustody on the sole ground there is no hospital bed available?[14] The respondent opposes the appeal on the basis there is no jurisdiction for anappeal under s 296 of the Criminal Procedure Act and the only way in which thesequestions could come before the High Court in the circumstances would be via anapplication for judicial review.Submissions[15] The issue for this decision concerns the interpretation of s 296(3) of theCriminal 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 thecharge; or(b) in the determination of the charge (including, withoutlimitation, a conviction, an acquittal, the dismissal of thecharge under section 147, or a stay of prosecution).[16] In Mr Nicholls' submission for Mr McMichael, both sets of charges have beendetermined. Mr McMichael was convicted and sentenced on the first and theproceedings stayed under the second. That amounts to a determination in the contextof them having been "finalised".[17] Mr Nicholls rejected the respondent's submission that the proper course wouldhave been for Mr McMichael to apply for judicial review of the decisions whichresulted in him being held in custody while the processes under the CP (MIP) Act todecide 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 orrecognised by law have been affected by a determination of anytribunal or other public authority has the right to apply, in accordancewith law, for judicial review of that determination.[18] In Mr Nicholls' submission, the reference in subs (2) to the right to judicialreview 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 thedecisions either.[19] Mr Nicholls emphasised that the process issues referred to in the draftquestions of law raise important issues with wide implications. Mr McMichael hascommenced proceedings in the civil jurisdiction seeking damages under theNew Zealand Bill of Rights Act in connection with what he maintains is the illegalityof his treatment throughout the two sets of proceedings.[20] In Ms Brook's submission for the respondent, the decisions of concern toMr McMichael do not relate to the determination of either set of charges. Rather, thosedecisions were taken before any determination. It would have been different, in hersubmission, had Mr McMichael sought to challenge the finding of fitness to stand trialor, for example, sought to vacate his guilty plea. In her submission, jurisdiction toappeal 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 theprocess of being determined in the High Court, Mr Nicholls contended there wasconflicting High Court authority. He referred to a hearing before a High Court Judgein 2022, when the Judge allegedly commented adversely on the way in whichMr McMichael had been treated and the length of time for which he was remanded incustody. He accepted that judicial review proceedings which deal at least with the firstproposed question of law have been heard and a decision is awaited (since deliveredand discussed further below).7 He maintained the other questions remained live,however, despite a number of High Court decisions which address whether a defendantcan continue to be held in custody despite the lapse of the 30-day remand period underthe CP (MIP) Act. Mr Nicholls then referred to his proposed question as to whetherMr McMichael was lawfully held in custody following the finding he was unfit tostand trial because a hospital bed was not available.[22] If I determine that Mr McMichael does have a right of appeal under s 296, aseparate hearing will be required to answer the question of whether he should begranted leave to appeal on the proposed questions of law. Ms Brook confirmed therewill be no objection to an extension of time to appeal in respect of the first set ofcharges.DiscussionSection 296 of the Criminal Procedure Act[23] The Court of Appeal in Anderson v R considered whether there was jurisdictionto hear an appeal against the refusal to allow a change of election to trial by jury. TheCourt held that the test under s 296(3) of the Criminal Procedure Act was whetherthere was a sufficiently close connection between the proceedings in which thequestion of law arose and the determination of the charge.8 The Court observed thatit is not always easy to draw the line between those matters which seem to fall withina determination and those that do not. The retention of the language of"determination" and the availability of other remedies suggested an expansive view ofs 296 was not required.97 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) wasrelevant. Those powers suggest that what is in issue is a decision which brings an endto matters.10[25] The Court concluded there was jurisdiction in that case because the decisionas to whether a trial is to be before a judge alone or by jury is closely linked todisposition or determination. It decides who will be the decision maker.[26] The learned authors of Adams on Criminal Law note it is possible to appealunder s 296 on a ruling made before or after the charge is determined. The requirementin subs 3(a) that the ruling "relate to the determination of a charge" means theremust be a sufficiently close connection between the proceedings in issue and thedetermination, albeit not necessarily a temporal connection.11[27] The text provides several examples. The learned authors refer to Anderson vR and note that an appeal under s 296 will be available in relation to a judge's refusalto grant leave to change an election.12 In contrast, there is no jurisdiction under s 296to hear an appeal in relation to the steps proposed or taken by the parties to resolve acharge out of court, or the granting of leave to withdraw a charge because neitherinvolves 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 thathad been laid against Ms Maangi. She was subsequently found fit to stand trial andthose charges were re-laid. Ms Maangi appealed the ruling granting police leave towithdraw the charges, arguing that the Judge had no power to grant leave to theprosecutor to withdraw the charges and was obliged to dismiss them for insufficientevidence or determine the s 9 question on the material before him. The Court ofAppeal explained that where, following a s 9 hearing, the Court is not satisfied of the10 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 justicerequires – 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]; andPaice v Police [2018] NZHC 1548 at [15].s 9 questions, the Court must dismiss the charge – a deemed acquittal. The questionof law was therefore sufficiently closely connected to the determination of the chargeto satisfy the jurisdictional requirement of s 296(3) of the Criminal Procedure Act.14Is there a sufficiently close connection between the proceedings in which the questionof law arose and the determination of the charges?[29] Mr Nicholls' arguments on s 296(3)(a) centre on whether the charges have beendetermined. The relevant consideration in this case,15 however, is whether thequestion of law arises in proceedings that relate to the determination of the charge.16The purpose of the section is to allow appeals against decisions with a sufficientlyclose connection to the determination.[30] Most of the draft questions of law relate to Mr McMichael's detention incustody 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 reportresults in a determination whether someone is fit to stand trial or is insane. This inturn relates to the determination of the proceedings as it enables the Court to decidewhether there should be a stay of proceedings, or a continuation of the proceedingsleading to either a conviction or an acquittal.[31] However, the length of time it takes for reports to be produced and the lengthof time a person should be in custody while the reports are produced lack the requisiteconnection to the determination of the charge. These are matters of a defendant'scustodial status. A number of High Court decisions have confirmed that thejurisdiction to remand a defendant in custody when reports are not available withinthe 30-day period referred to in the CP (MIP) Act is governed by the Bail Act. AsSimon France J made clear in Adams v Police, if the assessments ordered under s 38are not completed within the statutory time period, then there are three optionsavailable to the Court:1714 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 proceedingswhich 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 forthe health professionals to have access to [the defendant] to completethe assessments.[32] This approach has been followed in the subsequent cases of Rickard v Policeand P v Police.18[33] Mr McMichael was not without a remedy as the various cases discussed havemade 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 inMaaka-Wanahi v Attorney-General.19 In that decision, McQueen J addressed whatshe concluded was a misconception about the purpose of the timeframes in ss 38 and40 of the CP (MIP) Act. She concluded that s 38 does not impose a specific timeframewithin 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 forthe purpose of an assessment and not the period within which a report must becompleted. The 30-day timeframe referred to in s 40 refers to the period of detentionpermitted with the consent of the defendant or guardian and not the period withinwhich a s 38 report must be completed.Conclusion[35] I conclude that the decisions about Mr McMichael's remand in custodysubsequent to the 30-day period are not sufficiently closely connected to thedetermination of his two sets of proceedings for there to be jurisdiction under s 296 ofthe Criminal Procedure Act to consider leave for him to appeal on questions of lawarising from those decisions.18 Rickard v Police [2021] NZHC 1033; P v Police [2023] NZHC 106. The circumstances of Rickardare analogous to those of Mr McMichael. Mr Rickard sought leave to appeal a question of lawagainst the order further remanding him in custody. It does not appear that the jurisdictional issueof s 296 was raised with the Judge. This was also the approach taken by the High Court onMr 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 followingproposed question of law relates to the first set of proceedings:Did the Presiding Judge have jurisdiction to deem not guilty pleas to beentered to the charges on 27 July 2021, notwithstanding at the earlierappearance on 20 July 2021 the Presiding Judge had directed two healthassessment reports be prepared to address fitness and insanity?[37] The entry of a plea, guilty or not guilty, is integral to the determination of thecharge.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 ofleave but, at a minimum, there must be a properly identifiable and arguable questionof law.21 The availability of alternative remedies, such as an appeal against convictionor 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 hadbeen ordered to address Mr McMichael's fitness to plead. He was subsequently foundfit to plead and entered guilty pleas. In these circumstances, and without more tosuggest there is any real point to the appeal, such as the extent of his discount atsentencing for his guilty plea, it is hard to avoid the conclusion that this proposedquestion is of academic interest only.[39] The following proposed question of law relates to the second set ofproceedings:Where there is sufficient evidence before a Court to support a finding that adefendant is unfit to stand trial and needs treatment for mental ill health in ahospital, as a matter of law under section 8(1) of the CP (MIP) Act, can it everbe in the interests of the defendant to postpone the determination of thequestion of fitness and remand a defendant in custody on the sole ground thereis no hospital bed available?[40] This proposed question raises issues about the use of the power under s 8 ofthe CP (MIP) Act to postpone the determination of fitness to stand trial if it is in theinterests of the defendant to do so. I consider that question of law did arise inproceedings that related to the determination of the second set of charges and was20 Judges enter deemed not guilty pleas for various reasons and a case cannot progress to a casereview 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 isvery broadly worded, asking if it will ever be in the interests of a defendant to remanda 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 indeciding leave to appeal.23 The other observations in this judgment and the decisionsreferred to about the timing of assessment reports under the CP (MIP) Act and thecustodial status of those in respect of whom assessment reports are ordered will nodoubt have a bearing on whether Mr McMichael pursues his application for leave toappeal on this question.Result[41] There is no jurisdiction to appeal in respect of the proposed questions 1, 2 and4 relating to the first set of proceedings or proposed questions 1 and 2 relating to thesecond set of proceedings.[42] Mr McMichael is to advise the Court within 10 working days of this decisionas to whether he wishes to purse his application for leave to appeal in respect ofproposed question 3 relating to the first set of proceedings and/or proposed question 3relating to the second set of proceedings.[43] If leave to appeal is to be pursued, counsel are to file memoranda (joint ifpossible) addressing whether the application for leave should be dealt with on thepapers and, in any event, addressing proposed timetabling orders.Thomas JSolicitors:Crown Law, Wellington23 Section 299 of the Criminal Procedure Act 2011 gives the first appeal court the power to amendor restate the question at any time before it is determined. See also R v Antonievic [2013] NZCA483, [2013] NZLR 806 at [43].