R v Soles - [2014] NZHC 2114

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-092-014293 [2014] NZHC 2114

BETWEEN
THE QUEEN

Plaintiff

AND

RALPH SHERMAN SOLES Defendant

Hearing: 28 August 2014

Appearances:

S L McColgan and H Clark for Crown
N E Walker for Defendant

Judgment:

3 September 2014

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 3 September 2014 at 3.00 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date………………………..

R v SOLES [2014] NZHC 2114 [3 September 2014]

Introduction

[1] Ralph Soles is a 72-year-old American who was stopped at Auckland International Airport on 28 December 2013 with six kilograms of methamphetamine in his luggage. He is for trial on 15 September 2014 on one charge of importing methamphetamine.

[2] Mr Soles initially asserted that he was mentally impaired and unfit to stand trial, triggering the process under Part 2, subpart 1 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. Three doctors examined Mr Soles. Dr Joseph Sakdalan initially considered that Mr Soles had a mental impairment and was unfit to stand trial. Dr James Gardiner and Professor Graham Mellsop subsequently provided reports disagreeing with that conclusion. After reviewing their reports Dr Sakdalan re-interviewed Mr Soles. He now considers that, whilst Mr Soles has a mental impairment, it is not of the type he had previously identified. He also now considers that Mr Soles is fit to stand trial, with the caveat that he will require some accommodation in terms of speed and additional breaks during the trial.

[3] Mr Soles seeks a finding as to mental impairment on the basis that, although fit to stand trial, his mental impairment requires accommodation during the trial, which he considers will be more readily given if there is a finding confirming the mental impairment. The Crown asserts that Mr Soles is not mentally impaired.

[4] There are few cases in which a defendant who has raised his or her fitness to stand trial subsequently asserts that they are fit. Such a concession does not relieve the Court of having to complete the process that has been started, for the reasons explained by the Court of Appeal in R v Te Moni:1

[39] … The situation which arises where an accused person instructs his or her lawyer to withdraw an application for a finding that he or she is unfit to stand trial creates something of a dilemma for counsel and for the court. The position of the court has now been resolved by McKay: the process, once it has been properly commenced, must be completed. The reason is that, until a fitness to plead assessment has been made, the court cannot be satisfied that the accused person was capable of giving instructions to his or her lawyer. Counsel, would, of course, have to comply with his or her

1 R v Te Moni [2009] NZCA 560 at [39]. See also R v McKay [2009] NZCA 378, [2010] 1 NZLR
441.

instructions,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Soles

Details

AGLC: R v Soles [2014] NZHC 2114
Case: [2014] NZHC 2114
Decision Date: 3 September 2014

CaseChat Overview and Summary

Ralph Soles, a 72-year-old American national, was arrested at Auckland International Airport on 28 December 2013 with six kilograms of methamphetamine in his luggage. He was charged with one count of importing methamphetamine and his trial is set for 15 September 2014. Mr Soles initially claimed to be mentally impaired and unfit to stand trial, leading to assessments by three doctors. Dr Joseph Sakdalan initially considered Mr Soles to be unfit to stand trial, while Dr James Gardiner and Professor Graham Mellsop disagreed. After reviewing their reports, Dr Sakdalan re-interviewed Mr Soles and concluded that while he had a mental impairment, he was fit to stand trial, requiring some accommodations in terms of speed and additional breaks during the trial. Mr Soles sought a finding of mental impairment to facilitate these accommodations, which the Crown opposed.

The legal issue before the court was whether Mr Soles was mentally impaired and, if so, whether this rendered him unfit to stand trial. The court noted that once a fitness to plead assessment had been initiated, it must be completed. The court found that Mr Soles' initial presentation, hospital admission, and clinical examinations raised concerns about his mental state. However, subsequent assessments by Dr Gardiner and Professor Mellsop concluded that Mr Soles was feigning symptoms of a stroke or other neurological event. Dr Sakdalan's final assessment found that while Mr Soles had cognitive impairment, he was fit to stand trial with some accommodations.

The court found that Mr Soles was not mentally impaired, as there was no physical evidence of a stroke or other neurological event. The court accepted the opinion of Dr Gardiner and Professor Mellsop that Mr Soles' symptoms were feigned. The court concluded that Mr Soles was fit to stand trial, and any difficulties he faced in terms of following the proceedings and requiring additional breaks were understandable challenges for an elderly defendant facing trial in a foreign country, rather than signs of mental impairment. These challenges could be addressed by the trial judge through reasonable accommodations.

Orders