Police v Wardle [2017] NZDC 23989 (20 October 2017)

Last Updated: 18 May 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

IN THE DISTRICT COURT AT PALMERSTON NORTH

CRI-2017-054-000647

[2017] NZDC 23989

NEW ZEALAND POLICE

Prosecutor v

MAURICE JOHN WARDLE Defendant

Hearing:	20 October 2017
Appearances:	T Tran for the Prosecutor A Graham for the Defendant
Judgment:	20 October 2017

DECISION OF JUDGE J D LARGE UNDER S 14 CP(MIP) ACT 2003

[1] Maurice John Wardle faces two charges, one of excess blood alcohol causing death, second of causing injury to a second person again with excess blood alcohol.

[2] On 9 August I issued a ruling following a s 9 Criminal Procedure (Mentally Impaired Persons) Act 2003 hearing which was conducted on the papers following agreement by counsel. That time I adjourned the s 14 hearing to enable Mr Wardle and his counsel Ms Graham to obtain a report from Dr Shaw a neuropsychologist from Tauranga.

[3] The hearing today proceeded under s 14 of the Act following the obtaining of three reports; one from Dr Barry-Walsh dated 31 May 2017, the second by Ms Kerry Reader a clinical psychologist who filed a report dated 28 May 2017, the

NEW ZEALAND POLICE v MAURICE JOHN WARDLE [2017] NZDC 23989 [20 October 2017]

third by Dr Shaw, her report appears undated but relates to her interview with Mr Wardle on 13 September 2017. Those reports were made available to counsel and each of the experts has had the opportunity of reading the other reports. Each of those three persons gave evidence today and were able to have questions asked of them by Mr Tran who appears on behalf of the police and Ms Graham who appears for Mr Wardle.

[4] The hearing today was conducted with breaks to enable Mr Wardle to have time to assess the information that he had heard, that being the recommendation of Dr Shaw in her report. The breaks were not every 30 minutes as Dr Shaw recommended but they were taken after consultation with Mr Wardle throughout the process. I take from his last request when I asked him if he wished a break he said yes So Mr Wardle was not a man who is shy in asking or telling me if he required one or not.

[5] My function today is to determine whether or not Mr Wardle is unfit to stand trial. Section 14 of the Act provides:

14 Determining if defendant unfit to stand trial

(1) If the court records a finding of the kind specified in section 13(4), the court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.

(2) If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and—

• (a) give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and
  
• (b) find whether or not the defendant is unfit to stand trial; and
  
• (c) record the finding made under paragraph (b).
  

(3) The standard of proof required for a finding under subsection (2) is the balance of probabilities.

(4) If the court records a finding under subsection (2) that the defendant is fit to stand trial, the court must continue the proceedings.

[6] Section 14 provides there should be evidence of two health assessors (they have been obtained) to determine whether Mr Wardle is mentally impaired.

[7] Given the reports I have from each of those three health assessors I am satisfied on the balance of probabilities that Mr Wardle is mentally impaired. I do so after, as I mentioned, having given both police and defence the opportunity of being heard.

[8] I now have to consider whether or not the defendant is unfit to stand trial. As I mentioned the standard of proof required is on the balance of probabilities and by virtue of provision of s 14(4) if I record a finding under subs (2) that Mr Wardle is fit to stand trial the Court must continue the proceeding. To reach that conclusion or to make an assessment and make a finding as to whether he is unfit to stand trial I have to look at the evidence that is available.

[9] Dr Barry-Walsh in his report and I do not intend to traverse it in great detail but he notes, “Having examined Mr Wardle,” he records, “That Mr Wardle has a mental impairment, namely dementia.” He acknowledges that it is significant and is progressive and records, “That despite Mr Wardle’s cognitive impairment he understands the charges he is facing.” Dr Barry-Walsh goes on to say, “That Mr Wardle was clear and resolute he would be pleading guilty to the charges.” And the doctor records his reasons for doing this, “Because he wanted to accept responsibility,” and in the doctor’s opinion, “And therefore that appeared to be an authentic decision. The doctor recorded also, “That Mr Wardle was able to draw on preserved memories of past contact with the Court process which allowed him to understand the legal situation including the severity of his charges, the plea options available to him and the roles of the officers of the Court.”

[10] Dr Barry-Walsh concluded in his opinion, “Mr Wardle is not unfit to stand trial on the basis that he clearly and authentically expressed an intention to plead guilty.” He is satisfied that he is able to weigh the significance of the plea and the potential consequences in a meaningful way.

[11] Interestingly at that point Dr Barry-Walsh goes on to say, “Further, that he would be, despite his significant cognitive impairment, able to negotiate the Court’s process with support provided he enters a guilty plea. If Mr Wardle was to enter a not guilty plea, however, then he may be unfit.”

[12] Dr Barry-Walsh in his concluding line said, “Because he is expressing a clear intention to plead guilty and because he is able to draw upon past experiences of Court process it is his view that he is fit to stand trial.”

[13] Ms Graham argues that does not and should not be the determinative factor given the definition contained in s 4, the plea is one of the conjunctive issues contained in s 4(b)(i).

[14] Unfit to stand trial is determined in s 4:

• (a) means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and
  
• (b) includes a defendant who, due to mental impairment, is unable—
  
  • (i) to plead:
  • (ii) to adequately understand the nature or purpose or possible consequences of the proceedings:
    
  • (iii) to communicate adequately with counsel for the purposes of conducting a defence.
    

[15] The plea issue is, as I say, not the determinative factor. Had that report been by itself in Ms Graham’s argument would have been far stronger. However, the other two reports from Ms Reader and from Dr Shaw indicate that Mr Wardle is not unfit to stand trial and in terms of Ms Reader’s opinion although Mr Wardle has some issue with regard to cognitive decline Mr Wardle does not appear to meet the threshold for being found unfit to stand trial at this time and in her opinion as long as the current proceedings are expedited in a reasonably time sensitive manner he should have not experienced any significant further decline in his cognitive functioning to alter this finding.

[16] When asked about her conclusion given it was made following an interview in May this year whether that conclusion would have changed today Ms Reader relied on the report of Dr Shaw and in essence said that her opinion remains the same although would expect if matters were into the New Year then there would need to be a reassessment before she could maintain that opinion.

[17] I should say in addition to that conclusion Ms Reader recommends that given Mr Wardle’s cognitive difficulties and vulnerability to stress as a result of these difficulties they should still be taken into account to ensure that he is given sufficient time and support to evaluate any information presented to him during the Court process.

[18] Dr Shaw in her report concluded that he was a very “marginal” case with regard to fitness to enter a plea and instruct counsel.

[19] Dr Shaw also highlighted the reality of Mr Wardle’s situation that his condition is likely to progress with increasing rapidity and so the sooner proceedings are dealt with the better because she is of the opinion that at some point in the not too distant future he will not be able to do so.

[20] Dr Shaw came to that conclusion after consideration of the earlier reports and her own interview and tests conducted with Mr Wardle.

[21] Initially (and I am referring to the fifth paragraph on page 7 of her report) based on the test findings alone she would probably be inclined to assume that the defendant was not fit to enter a plea. However, she went on to say that after discussions with Mr Wardle and with [his support person] and taking into account his compromised scores on testing she was of the opinion that although he has significant cognitive limitations and will need significant support he does have the capacity to decide for himself how he would like to plea and how to instruct his counsel.

[22] In evidence today Dr Shaw mentioned that there should be a clear record of notes of the evidence taken in any hearing and a person sufficiently qualified to ensure that Mr Wardle was managing the receipt of that information because she was concerned about his internalising of the information.

[23] I am required in terms of s 14 to determine on the balance of probabilities whether or not the defendant is unfit to stand trial.

[24] Given the evidence and the assessors conclusions, I find that the defendant is not unfit to stand trial.

[25] I acknowledge that it may be a difficult trial if it gets to trial but on the evidence available to me today and it is today’s evidence, not the likelihood of deterioration in the future that I must consider, and based on the evidence today. I am not satisfied on the balance of probabilities that Mr Wardle is unfit to stand trial.

J D Large

District Court Judge