MCMICHAEL v POLICE [2023] NZHC 1125

MCMICHAEL v POLICE [2023] NZHC 1125 [12 May 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 1125BETWEEN BRENDON MURRAY MCMICHAELAppellantAND NEW ZEALAND POLICERespondentOn the papersCounsel: C J Nicholls for AppellantC Brook for RespondentJudgment: 12 May 2023JUDGMENT OF THOMAS J(LEAVE TO APPEAL ON QUESTION OF LAW)Introduction[1] Mr McMichael has applied for leave to bring an appeal on a number ofquestions of law under s 296 of the Criminal Procedure Act 2011.[2] In my judgment dated 6 March 2023,1 I addressed whether there wasjurisdiction to appeal in relation to a number of the proposed questions of law. Idetermined there was jurisdiction in respect of two proposed questions and nowconsider whether leave should be granted.1 McMichael v Police [2023] NZHC 401.Approach to appeal[3] There are no statutory criteria governing the grant of leave to appeal but, at aminimum, there must be a properly identifiable and arguable question of law.2 Theavailability of alternative remedies, such as an appeal against conviction or judicialreview, are relevant to the scope of appeals on questions of law.3First question of law[4] Mr McMichael appeared in the District Court on 1 July 2021 in respect of anumber of charges. Concerns were expressed as to whether there might be a defenceof insanity and issues as to fitness to stand trial. As a result, on 20 July 2021, thepresiding Judge ordered two health assessment reports under s 38(1)(a) and (b) of theCriminal Procedure (Mentally Impaired Persons) Act 2003 (CP (MIP) Act), to assistthe Court to determine whether Mr McMichael was unfit to stand trial, or whetherMr McMichael was insane within the meaning of s 23 of the Crimes Act 1961. Hewas remanded in custody. On 27 July 2021, Mr McMichael appeared in theDistrict Court, representing himself. He was abusive to the Judge. The Judge deemednot guilty pleas to be entered to all charges (notwithstanding the issues of insanity andfitness to plead had not yet been assessed) and remanded him in custody to16 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 be enteredto the charges on 27 July 2021, notwithstanding that at the earlier appearanceon 20 July 2021 the Presiding Judge had directed two health assessmentreports be prepared to address fitness to stand trial and insanity?Second question of law[6] In 2022, Mr McMichael faced another set of charges. Two health assessmentreports under s 38(1)(a) and (b) of the CP (MIP) Act were ordered on 11 April 2022.Mr McMichael appeared in the District Court on 28 September 2022, by which timeboth s 38 reports addressing fitness to stand trial and insanity had been filed and both2 Police v Moheed [2017] NZHC 83 at [17].3 Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321, at [45]-[46].reports concluded that Mr McMichael was unfit to stand trial. Because no hospitalbed was available, the Judge postponed the determination of whether Mr McMichaelwas unfit to 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 inquiries be madeto determine the most suitable method of dealing with the person under ss 24 or 25.For the purposes of the inquiries, the Court must either make it a condition of a grantof bail that the person go to a place approved by the Court for the purpose of theinquiries or remand the person to a hospital or a secure facility.4 A secure facility is aplace with particular security features used to provide care to those with an intellectualdisability and is not a prison.5 Mr McMichael could not discharge the s 12 reverseonus under the Bail Act 2000 to satisfy the Court that he should be bailed, and nohospital bed was available. The Judge therefore adjourned the fitness hearing until ahospital bed was available, ruling that it was in the "interests of the defendant" todo so.6[7] Mr Nicholls, for Mr McMichael, originally proposed the question: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 s 8(1) of the CP (MIP) Act, can it ever be inthe interests of the defendant to postpone the determination of the question offitness and remand a defendant into custody on the sole ground there is nohospital bed available?[8] Following my observation that the proposed question was phrased too broadly,Mr Nicholls proposed the following:Where there is sufficient evidence before a Court to support a finding that adefendant is unfit to stand trial and needs treatment for mental health in ahospital, as a matter of law under section 8(1) of the CP (MIP) Act, whatcriteria can properly be considered to determine whether it is in the interestsof the defendant to postpone the determination of the question of fitness andtherefore further remand a defendant in custody?[9] Leave is granted to appeal on the following question of law:4 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 23(2).5 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 4; and Intellectual Disability(Compulsory Care and Rehabilitation) Act 2003, s 9.6 Section 8(1).If there is the evidence of two health assessors before a Court to support afinding that a defendant is unfit to stand trial, is it in the interests of thedefendant, under s 8(1) of the Criminal Procedure (Mentally ImpairedPersons) Act 2003, to postpone the determination of the defendant's fitness tostand trial and remand the defendant in custody solely because there is nohospital bed available to accommodate the defendant for the purposes of thes 23 inquiries.Result[10] Leave to appeal on the two questions of law as set out at [5] and [9] of thisjudgment is granted.[11] Counsel are to confer and advise the Registrar within five working days of thedate of this judgment of the estimated time required for hearing. The Registrar isdirected to then allocate a fixture for the hearing of the appeal.[12] The appellant's submissions are to be filed and served ten working days beforethe appeal hearing and the respondent's submissions five working days before theappeal hearing.Thomas JSolicitors:Crown Law, Wellington