R v Codd HC Auckland CRI 2005-004-012997
[2006] NZHC 1674
•5 May 2006
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2005-004-012997
Q U E E N
v
WALLACE JOHN CODD
Accused
Hearing: 6 April 2006
Appearances: K Raftery and N Webby for Crown
P Tomlinson for Accused
Judgment: 5 May 2006
JUDGMENT OF SIMON FRANCE J
Solicitors:
Meredith Connell, Office of the Crown Solicitor, PO Box 2213, Downtown, Auckland
(Fax: 336 7629)Mr P Tomlinson, Solicitor, PO Box 194, Shortland Street, Auckland (E-mail:
R V CODD HC AK CRI 2005-004-012997 [5 May 2006]
[1] Mr Codd is charged with sexual offending in relation to two boys. Single incidents are alleged, dating back to 1964 and 1976 respectively. The present hearing involves applications under the Criminal Procedure (Mentally Impaired Persons) Act 2003, s 347 of the Crimes Act 1961, and the inherent jurisdiction. All three put in issue Mr Codd’s fitness to stand trial, with the latter two applications focussing also on the historical nature of the complaints. At the end of the hearing I stayed all charges against Mr Codd with reasons to follow.
Charges
Complainant Y
[2] The charges in relation to complainant Y stem from a single occasion when Y
was around eight years of age. The indictment dates are between 1 January 1964 and
31 December 1965. Y lived with his family in the same street as Mr Codd and his family. Y and Mr Codd’s children were friends and on the night in question Y stayed at the Codds’ house. It is alleged by Y that Mr Codd got into bed with him during the night and sexually abused him. The allegations are indecent touching, oral sex, inducing an indecent act and sodomy.
[3] It is alleged that the following day, when an opportunity arose, Mr Codd again tried to touch Y inside his shorts. Y stopped him and nothing happened thereafter.
[4] Y complained to the Police in 2004, so approximately 40 years after the alleged incident. Y says that he had kept what had happened to him suppressed, and had blocked the accused completely out of his head. However, in September 2003 he suffered a head injury which brought the incident back to the surface and he had been unable to suppress it since.
[5] The depositions contain evidence from a person who was friends with Y at the time. This witness recalls a dinner around 1980 at which old times were being discussed. When Mr Codd’s name came up, Y is said to have said that Mr Codd
“abused him”. The witness believed it was a reference to sexual abuse but it was not elaborated upon at the time. No decision has been made as to whether this evidence would be admissible as recent complaint evidence.
Complainant Z
[6] The single charge in relation to complainant Z relates to an event in 1976. Z was then aged 15. It is alleged that Mr Codd induced a meeting by offering to arrange for Z to have sex with an older woman. Z attended and was plied with alcohol. There was no woman present. After much alcohol was consumed, it is alleged that Mr Codd pushed Z to the floor, fondled his genitalia and tried to force open Z’s legs. Z resisted and it is said that Mr Codd then ceased his efforts.
[7] The charge in relation to this incident was filed three weeks after the charges concerning Y. There is no evidence on file as to why the complaint was made at the time it was, or why the delay occurred. By consent, Z’s trial had been severed from Y’s so Mr Codd was facing two trials.
Mr Codd’s health
[8] Written reports from Ms S Visser, a registered psychologist, and Dr I Goodwin, a registered psychiatrist, were filed. Dr Goodwin also gave oral evidence expanding upon two aspects of his report – namely, the likelihood of improvement in Mr Codd’s health, and disposition options should the Court consider Mr Codd unfit to stand trial. Ms Visser was also available to give oral evidence, but was not required since both Crown and defence were agreed on Mr Codd’s fitness to stand trial, and on disposition options.
[9] Mr Codd is 80 years of age. Ms Visser diagnosed him in 2004 as suffering from Post-Traumatic Stress Disorder as a result of war experiences in World War II and the Korean war. Then, in late 2004, Mr Codd was diagnosed with Parkinson’s disease. Dr Goodwin noted that CT scans had also revealed that, in addition to Parkinson’s disease, Mr Codd suffers from small vessel disease which affects the supply of blood to the brain. Dr Goodwin advises that whilst deterioration of the
brain functions need not accompany Parkinson’s disease it is more common when the onset of the disease occurs later in life.
[10] The two diseases have impacted upon Mr Codd’s mental functioning. Ms Visser carried out a range of tests that revealed performance well below average in most areas. Functions that are affected include memory, the ability to think and reason, the ability to organise thoughts and articulate them, slower processing, attentional deficits, and emotional stability. Depression is seemingly a common consequence of Parkinson’s disease. Dr Goodwin drew similar conclusions although, as is to be expected, there were differences in the emphasis given to different impairments.
[11] Both professionals considered that Mr Codd was unfit to stand trial in terms of his ability to instruct counsel and to follow the processes of the Court. Both concluded Mr Codd understood sufficiently the respective roles of the various participants in the Court process, and understood the meaning of a plea and the differences between guilty and not guilty. However, his degree of impairment would greatly affect the instructions he could give to counsel, and his ability to participate in the trial.
[12] As noted, Dr Goodwin gave further evidence on the future of Mr Codd’s health. In his experience Mr Codd’s condition was likely to deteriorate; there was no hope of reversal and the only question was the speed with which matters might worsen. In terms of fitness to stand trial there would be no improvement. In terms of any disposition orders a Court might need to make if it found Mr Codd unfit to stand trial, Dr Goodwin said Mr Codd was presently able to remain self-sufficient to a point. He represented no danger to anyone else, and the only dangers were to himself as the diseases progressed. Dr Goodwin considered that development would happen in terms of months rather than years.
Submissions
[13] Both counsel were agreed that the only real conclusion available to the Court was that the proceedings should be stayed. Mr Codd was unable presently to instruct
counsel adequately and matters would not improve. Counsel were also agreed no special disposition orders were required. Mr Codd had been, and would continue to be, under Ms Visser’s care, and more generally was already within the health system.
Discussion
[14] At the conclusion of the hearing I stayed all counts in both indictments. I indicated to counsel that I had some concerns about the application of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to the present situation. However, I was satisfied that the circumstances were appropriate for a stay to be imposed under the Court’s inherent jurisdiction. Accordingly, I could immediately impose the stay and then reflect further on the issues arising under the Act.
[15] Concerning the inherent jurisdiction, the principles have been often stated and need no repetition in the circumstances of this case. The two incidents here date back approximately 40 and 28 years respectively. Both allegations are of specific instances rather than a course of conduct. Memory is plainly relevant to any defence, as is the ability to communicate to counsel about the whole context existing at the time – family arrangements, living arrangements, lifestyle patterns, work arrangements, and opportunities for contact to name but a few. Accused persons often testify in these sorts of trial. Mr Codd’s health is a specific prejudice arising from the delay. It manifests itself in a way that is directly relevant to his capacity to conduct a defence to an extent where it would in my view be not possible to have a fair trial. Accordingly I would impose a stay under the inherent jurisdiction, independent of the statutory stay of proceedings that may be available under the Criminal Procedure (Mentally Impaired Persons) Act 2003.
Criminal Procedure (Mentally Impaired Persons) Act 2003
[16] The Act came into force on 1 September 2004. The provisions of Part 7 of the Criminal Justice Act 1985 were consequently repealed. The purposes of the new Act are stated in s 3 as being:
3 Purpose
The purpose of this Act is to restate the law formerly set out in Part 7 of the Criminal Justice Act 1985 and to make a number of changes to that law, including changes to—
(a) provide the courts with appropriate options for the detention, assessment, and care of defendants and offenders with an intellectual disability:
(b) provide that a defendant may not be found unfit to stand trial for an offence unless the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence:
(c) provide for a number of related matters.
[17] In Trow v Police (Auckland HC, CRI 2004-404-208, 10 September 2004), Nicholson J noted that the Act established a five-step procedure for addressing issues of unfitness to stand trial:
1. determining the sufficiency of the offence evidence;
2. determining mental impairment;
3. determining if unfit to stand trial;
4. if yes, ordering inquiries; and
5. determining appropriate order.
[18] The two issues that arise in the present application both occur in the context of step one. The first is whether it is possible to hear an application in between depositions and trial. The second concerns the process by which the sufficiency of the “offence evidence” is established.
Issue one – timing of application
[19] Several provisions need consideration. First, s 7 of the Act provides:
7 When finding of unfitness to stand trial may be made
(1) A court may make a finding under this subpart that a defendant is unfit to stand trial at any stage after the commencement of the proceedings and until all the evidence is concluded.
(2) Subsection (1) is subject to section 9.
[20] On its face s 7 is broad in terms of when such a determination can be made. “Proceedings” is not defined, but s 12 of the Summary Proceedings Act 1957 states that commencement of proceedings is generally by way of laying an information.
[21] Section 9 is the pivotal provision. It provides:
9 Court must be satisfied of defendant’s involvement in offence
A court may not make a finding as to whether a defendant is unfit to stand trial unless the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.
[22] It is clear from the legislative history, and from the purposes as set out in s 3 of the Act, that the inclusion of s 9 was a key aspect of the reform. The Explanatory Note (Criminal Justice Amendment Bill (No 7) 1999) notes the then absence of any provision requiring the prosecution “to establish that the accused was in fact physically responsible for the act or omission that forms the basis of the offence that they were alleged to have committed”. A provision along the lines introduced had been recommended by the Law Commission (“Community Safety: Mental Health and Criminal Justice Issues”, Wellington 1994).
[23] As Adams notes, most overseas jurisdictions which require a “trial of the facts” hold such inquiries after there has been a finding of impairment. New Zealand’s legislation reverses that order, requiring a Court first be satisfied on the balance of probabilities that the offender caused the act. Adams notes in its commentary to s 10 that it will be important to see this initial s 9 inquiry as discrete from the inquiry into fitness to stand trial. Each hearing has a distinct legal purpose. Whilst that is so, it is equally important in my view to keep the context of s 9 in clear focus. It begins by reference to a Court making a finding of unfitness, thereby suggesting a determination under s 9 should only be made where there exists an unfitness application. I would go further and suggest it should only be made once it has been shown that there is an application which has a clear evidential foundation. Otherwise s 9 has the potential to operate as an alternative to s 347 of the Crimes Act
1961, but with the prosecution required to establish its “preliminary” case to a higher standard.
[24] As noted, s 9 states that a finding of unfitness can be made only if the Court is satisfied that the evidence is sufficient to establish the defendant caused the act. The Act sets out in ss 8, 10, 11, and 12 the process for reaching this initial determination. In reviewing the processes contemplated by these sections, it is helpful to bear in mind the question presently being considered – is a Court empowered to reach the s 9 determination after depositions and prior to trial?
[25] Section 8 of the 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 is unfit to stand trial.
(2) However, at a hearing or trial, a court may not postpone the determination of that question beyond the stage at which all the evidence is concluded.
(3) When a court postpones the determination of the question whether a defendant is unfit to stand trial, the court may not determine the question if—
(a) the defendant is acquitted; or
(b) the information against the defendant is dismissed.
[26] This section sits comfortably with s 9. Read together, it is plain that the Court is to ensure that proper scrutiny of the core allegation is made before an unfitness to plead determination occurs. The Court’s postponement power is not to be exercised in the wider interests of justice, but rather only if it is in the defendant’s interest to do so. The reference in s 8(2) to the conclusion of evidence reinforces the view that the primary rationale for postponement would be to allow fuller testing of the core allegation prior to making an unfitness to plead finding.
[27] Sections 10, 11, and 12 then set out when and how the testing of the core allegation may occur. It is necessary to cite the sections in full:
10 Inquiry at summary hearing into defendant’s involvement
(1) This section applies if a defendant is proceeded against summarily.
(2) If the question whether the defendant is unfit to stand trial is to be determined before the hearing of the information, the court must hold a special hearing to ascertain whether the court is satisfied of the matter specified in section 9.
(3) The provisions of Part 5 of the Summary Proceedings Act 1957 (other than section 160A), so far as they are applicable and with any necessary modifications, apply to every hearing held under subsection (2).
(4) If the question whether the defendant is unfit to stand trial is to be determined in the course of the hearing, the court must ascertain whether it is satisfied of the matter specified in section 9.
(5) For the purpose of subsection (4), the court may (whether on the application of a party or on the court’s own initiative) do either or both of the following:
(a) consider any evidence presented at the hearing: (b) hear any new evidence.
11 Inquiry at depositions into defendant’s involvement
(1) This section applies if a preliminary hearing under Part 5 of the
Summary Proceedings Act 1957 is required.
(2) If the question whether the defendant is unfit to stand trial is to be determined before the preliminary hearing, the court must hold a special hearing to ascertain whether the court is satisfied of the matter specified in section 9.
(3) The provisions of Part 5 of the Summary Proceedings Act 1957 (other than section 160A), so far as they are applicable and with any necessary modifications, apply to every hearing held under subsection (2).
(4) A hearing held under subsection (2) takes the place of a preliminary hearing under Part 5 of the Summary Proceedings Act 1957.
(5) If the question whether the defendant is unfit to stand trial is to be determined in the course of a preliminary hearing, the court must ascertain whether it is satisfied of the matter specified in section 9.
(6) For the purpose of subsection (5), the court may (whether on the application of a party or on the court’s own initiative) do either or both of the following:
(a) consider any evidence presented at the preliminary hearing: (b) hear any new evidence.
(7) A District Court Judge must preside over a court that conducts a special hearing under subsection (2) or determines whether the defendant is unfit to stand trial in the course of a preliminary hearing.
12 Inquiry at trial into defendant’s involvement
(1) If the question whether the defendant is unfit to stand trial is to be determined in the course of a trial, the court must ascertain whether it is satisfied of the matter specified in section 9.
(2) For the purpose of subsection (1), the court may (whether on the application of a party or on the court’s own initiative) do 1 or more of the following:
(a)consider any evidence presented at the preliminary hearing or at the trial:
(b) rehear any of the evidence presented at the preliminary hearing: (c) hear any new evidence at any stage before the commencement of
the closing addresses.
[28] Read together, it can be seen three distinct hearing situations are contemplated:
a) when the charge is actually to be determined, whether that be at a summary hearing (s 10(4)) or a trial (s 12(1));
b) at depositions (ss 10(5) and (6)); and
c) at a “special hearing” held prior to the summary hearing (ss 10(1)-(3))
or prior to depositions (ss 11(1)-(4)).
[29] Turning to the present application, Mr Codd’s current situation does not fall within any of these. He has been committed for trial so it is too late to determine the matter either at a special hearing before depositions, or during depositions. The other express statutory option is at trial itself. To determine it on the present application would be to read into the legislation the capacity to have a “special hearing” at a time other than those provided for in the legislation.
[30] Support for such an approach could be taken from the wording of s 7, which authorises a finding “at any stage after the commencement of the proceedings”. It could be that “stage” refers to the formal points in a prosecution – e.g. depositions or trial – but it would certainly not be stretching language to read it more broadly. A
capacity to hear an application after depositions but prior to trial would be consistent with criminal procedure generally.
[31] On the other hand, such a hearing would not only fall outside the express options identified in ss 10-12, but would also be contrary to the wording of s 13 of the Act which states:
13 Outcome of consideration of defendant’s involvement
(1) When the court has ascertained, in accordance with any of sections
10 to 12, whether the court is satisfied of the matter specified in section 9, the court must record its finding on the matter.
(2) If the court is not satisfied of the matter specified in section 9, the court must discharge the defendant.
(3) A discharge under subsection (2) does not amount to an acquittal.
(4) If the court is satisfied of the matter specified in section 9, the court must proceed to determine the matters specified in section 14.
[32] The wording of s 13(1) throws one back to the natural implication to be taken from ss 10-12, namely that they represent the circumstances under which a determination of unfitness to plead may be made. To determine the application at the present time could arguably fall within the broad terms of s 7, but could not in any way be said to be in accordance with any of sections 10-12. In a discussion of
the new procedures, Professor Brookbanks observes:1
The question must be determined at a “special hearing”, which the court must hold at any stage of the criminal trial process at which the issue of the defendant’s unfitness to stand trial arises, but only up until the stage where all the evidence is concluded (s7(1)). Thus the issue may be raised at a summary hearing, whether before the hearing of the information or in the course of the hearing, at a preliminary hearing of charges laid indictably, or in the course of a jury trial (ss10-12). The Act makes no provision for the issue to be raised after evidence has been concluded or during the sentencing phase of the trial. [emphasis added]
1 CLE Paper “The New Regime of Criminal Procedures and Compulsory Care Governing Mentally
Impaired and Intellectually Disabled Persons”, 27 July 2004.
[33] In this case it was appropriate, for reasons already expressed, to order a stay under the inherent jurisdiction. It is not therefore necessary to reach a formal conclusion on the availability pre-trial of Criminal Procedure (Mentally Impaired Persons) Act 2003 procedures, and I did not hear full argument on this point from counsel. Accordingly, I conclude by simply observing that significant doubts appear to exist as to whether a trial Court has jurisdiction to hear such an application between depositions and trial. I conclude by noting that this appears to be the view of the learned authors of Adams (commentary on Act, CM 12.02).
Issue two – how is s 9 test to be met?
[34] I address this issue because it links back into the preceding discussion. Section 9 requires a Court to be satisfied, on the balance of probabilities, that the evidence establishes that “the defendant caused the act or omission that forms the basis of the offence”. That wording appears to contemplate a situation where it is apparent that the actus reus has occurred, but is broad enough to be read as covering the present situation where it is denied that any offence has occurred at all. The wording of s 9 can be met because it can be said that an accused cannot have “caused an act” that has not occurred.
[35] In the present case Mr Tomlinson conceded that, because he had not challenged the evidence, the Court could be satisfied on the papers that the s 9 test was met. I am not so sure. In saying that I make no criticism of Mr Tomlinson – when making the concession Mr Tomlinson was aware that the only disposition in contemplation was a stay of proceedings. His concession placed his client in no jeopardy of any disposition that might limit movement or freedom.
[36] However, looking at the matter objectively, complainant Y’s allegation is of conduct that occurred 40 years ago. It is a single incident when he was “about 8 years old”, and he apparently had no conscious memory of it for 30 plus years until he recently suffered a blow to the head while working. In such circumstances I would have wished his evidence to be tested and/or to have heard some expert evidence on memory and its functioning in such circumstances before I was satisfied on the balance of probabilities that the incident occurred. This is not to doubt Mr Y;
it is just that it is not a situation that it seems to me can be resolved, even to the civil standard, on the papers. This is particularly so in the present case since consent would be no defence, and the Court is in reality being asked to make a finding of guilt albeit to the lesser standard.
[37] The fact that it would be necessary to hear evidence in order to be satisfied that the s 9 requirements were met could be seen to be consistent with the view that the legislative scheme requires such applications to be determined in the course of a formal stage in the proceeding. In the case of sexual offending a separate hearing would carry the risk of a complainant needing to testify twice if the accused is ultimately found fit to stand trial.
[38] Upon reflection, and notwithstanding the concession made by the accused, I am of the view that without hearing evidence I could not be satisfied under s 9 that Mr Codd was responsible for the actus reus. Had it been necessary I would have adjourned the application (perhaps to trial) to enable that to occur.
[39] Before leaving the topic I note that in his paper (para 32 above) Professor Brookbanks discusses the uncertainty that exists concerning the nature of a s 9 hearing. He observes:
Because the new ‘special hearing’ is not dependant upon a prior finding of unfitness to stand trial, and cannot simply be regarded as an inquiry into a
‘preliminary matter’, it is arguable that a full adversarial hearing of the
substantive issue of responsibility for the actus reus will need to take place. There is, it would seem, no other way of conceptualising the procedure. In these circumstances counsel are likely to insist that the issues of physical responsibility and fitness to stand trial be kept separate and treated as discrete enquiries, so that only after the issue of physical responsibility has been conclusively determined would the court be invited to address the issue of trial competence. This, in any event, is the order prescribed in the statute (see s13).
[40] As noted I am satisfied that at least in this case a fuller hearing would indeed have been required. As Professor Brookbanks comments, there remain some conceptual difficulties to be worked through concerning such a hearing. A full adversarial hearing may prove problematic when the overall context is a concern over an accused’s ability to adequately instruct counsel. It may be that in some cases it will be necessary to appoint amicus to test the prosecution evidence given the
accused’s own counsel will presumably be handicapped in his or her capacity to conduct cross-examination in accordance with instructions. These are no doubt matters that will be worked through over time.
Conclusion
[41] For reasons given, the charges against Mr Codd are stayed under the exercise of the Court’s inherent jurisdiction.
Simon France J
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