R v Soles [2014] NZHC 2114 (3 September 2014)

Last Updated: 18 September 2014

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, having endeavoured to provide advice about the process to the accused person in language he or she can comprehend. But as the decision in McKay makes clear, the effort to withdraw an application that has been properly made or cause the process to be discontinued will now be futile, once the process has begun, a judge must ensure it is completed.

[5] The issue of fitness to stand trial only falls for determination if there has been a finding under s 9 that the defendant committed the act that forms the basis of the offence with which he or she is charged. There has been such a finding in this case.²

The next step is a hearing under s 14. Section 14(2) requires the Court, if satisfied on the evidence of the health assessors, that the defendant is mentally impaired, to record a finding to that effect and then go on to:

(a) Give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial;

(b) Find whether or not the defendant is unfit to stand trial; and

(c) Record a finding made under paragraph (b).

[6] The standard of proof required for the finding as to fitness to stand trial is on the balance of probabilities.³

Mr Soles’ initial presentation

[7] Mr Soles was interviewed by a Customs Investigator at Auckland

International Airport at 7.50 pm on 28 December 2013. The interview concluded at

10.00 pm. The transcript shows Mr Soles responding appropriately to questions about himself. He also provided lengthy, coherent statements as to the circumstances in which he came to be in New Zealand and have the bag allegedly containing methamphetamine with him. The truthfulness of those explanations is not, of course,

_{in issue at this stage.}

² _{R v Soles [2014] NZHC 1733.}

³ Criminal Procedure (Mentally Impaired Persons) Act 2003, s 14(3).

Mr Soles is admitted to Auckland City Hospital

[8] In February 2014 Mr Soles was found on the floor of his cell at the Auckland Remand Centre. He appeared to have difficulty speaking and difficulty with movement. He was admitted to Auckland City Hospital on 16 February 2014. Dr Gardiner’s report contains the details of examinations conducted at that time, taken from hospital notes and discussions with hospital staff.

[9] Although Mr Soles was not using a wheelchair when he entered New Zealand, it appears that sometime after his arrest he began to do so. He was using a wheelchair when admitted to Auckland Hospital. On admission it was noted that he was taking medication consistent with chronic pain and heart problems as well as vitamin supplements and antibiotics.

[10] Mr Soles’ initial presentation was not obviously abnormal apart from difficulties with speech. There appeared to be a little less than normal power in his right arm but otherwise his limbs appeared normal. There was no evidence of facial droop. There was no tongue deviation (and therefore no difficulty in swallowing). The initial impression of the admitting team was that he had Expressive Dysphasia (inability to express himself) which could be secondary to a stroke. Given cardiac risk factors, they also considered the possibility of intra-cranial bleed due to hypertension. His blood pressure was high on admission.

[11] However, subsequently investigations did not reveal any physical signs of either stroke or intra-cranial bleeding. A CT scan showed no evidence of haemorrhage or stroke. His blood tests did not show the presence of any raised inflammatory markers. His chest x-ray was clear and urine tests normal. The report completed by a radiologist, Dr Maurice Moriarty, following the CT scan recorded:

Non-contrast scans. There is no haemorrhage, infarction or swelling. No hydrocephalus, subdural collection or mass lesion. IMPRESSION: No cause for presentation identified.

[12] MRI scans were then taken two days apart on 16 and 18 February 2014. In relation to the first, Dr Moriarty recorded:

No infarction or other acute intra-cranial pathology is shown. There is no hydrocephalus, swelling or mass lesion. There is occlusion of the left internal carotid artery which appears longstanding. Blood flow to the left cerebral hemisphere is via anterior and posterior communicating arteries with some intra-cranial atheroma suspected and reduced flow within the left M1 segment. No haemorrhage, Ivy sign, or other significant abnormality. IMPRESSION: Symptoms may relate to left hemispheric hypoperfusion.

[13] In relation to the second MRI scan Dr Moriarty reported:

Persisting aphasia. Left carotid occlusion. No acute infarction or other significant parenchymal abnormality is shown.

[14] Reviews were subsequently conducted on the neurological ward. Mr Soles was seen by neurologists, staff from liaison psychiatry, physiotherapy, occupational therapy and speech language therapy. Dr Gardiner summarised these reviews:

As the admission progressed the medical notes indicate (i) that there were some inconsistencies in Mr Soles aphasia with fluctuation in terms of how he presented including his ability to express himself both verbally and in a written manner, (ii) inconsistencies in tests of peripheral neurological function including the strength of all his limbs bi-laterally and (iv) an unusual pattern of symptoms that the neurology team felt was inconsistent with the symptoms usually observed in a stroke that affects the voice and verbal communication.

[15] Eventually, Mr Soles was seen by a psychiatrist, Dr Chris Kenedi. He concluded that Mr Soles was malingering. Dr Kenedi made enquiries with Mr Soles’ family in the US and took that information into account. Care would be needed before placing undue weight on it in the absence of medical records to support some of the assertions. However, Dr Kenedi’s primary conclusion was based on clinical examinations:

IMPRESSION: Based on the clinical picture presented by the neurology team as well as the evidence of his inconsistent clinical exams from the multi-disciplinary team and the lack of any findings of metabolic, haemorrhagic or occlusive insult or imaging or laboratory exams, I think it is most likely that Mr Soles is malingering. In discussions with his lawyer the concept that if he could not speak he would not be able to enter a plea or testify in his defence which meant that his lawyer would ask for an indefinite stay was discussed. I would be concerned that Mr Soles is aware of this and is acting on this as a form of defence. This is inconsistent with some of the collateral information which suggests that there is a pattern of possibly narcissistic traits and a previous demonstrated ability to view himself as above others as well as to get himself and others out of difficult situations.

There is a history of somewhat unclear and questionable medical acts including collateral reports that he may have exaggerated or faked chest pain symptoms in order to receive medication and/or sympathy. Some episodes described as seizures which sound quite unlikely to have been seizures since they involve significant tonic-clonic activity but apparently the patient was fully conscious without a post-ictal period and the tonic-clonic behaviour was limited to two bi-laterial extremities during each episode without generalisation. Notably also at least the first episode seems to have terminated when additional pain medication was found ...

Notable for his current situation is the fact that his story of the event of missing his flight in Auckland Airport and then having his luggage available seems slightly implausible as even if he had missed the connecting flight while remaining at the airport which is not to say an easy thing to do it is unclear why his luggage would have been immediately available. Also notable is that he was ambulatory with a cane during the period up to his incarceration at the remand prison and then began to deteriorate without any objective evidence of a known pathological process that could explain that deterioration. Finally there is the inconsistency in his behaviour in the hospital such as being able to swallow food while not being able to form words as well as his difficulty in engaging in assessments.

(emphasis added)

[16] Mr Soles was discharged on 27 February 2014 with a diagnosis of aphasia with no organic cause identified.

Dr Sakdalan’s reports 12 May and 12 June 2014

[17] Against the background of Mr Soles’ stay at Auckland City Hospital, Dr Sakdalan interviewed him in April and May 2014. He produced a preliminary report dated 12 May 2014 and a final report dated 12 June 2014. In his preliminary report he referred to having administered sub-tests of the Wechsler Adult Intelligence Scale

– 4^th edition and the Repeatable Battery for the Assessment of Neuropsychological

Status – Update Form A. He considered that Mr Soles had mental impairment due to global aphasia and significant cognitive impairment, possibly due to hypoperfusion of the left hemisphere. In his subsequent report he elaborated on these conclusions.

[18] In the second report Dr Sakdalan commented on Mr Soles’ behaviour during

the tests he administered:

The writer was not able to administer the verbal sub-tests as Mr Soles was asphasic. Mr Soles appeared to have participated in this test to the best of his abilities. He was cooperative with the testing. Mr Soles had difficulties with comprehending some test instructions and that the writer had to explain

the test in much simpler terms and that he responded by nodding if he understood the instructions. It was apparent that Mr Soles also struggled with non-verbal tests. Overall the writer is of the opinion that the test result was valid.

[19] Against that comment Dr Sakdalan went on to conclude that the test findings indicated that Mr Soles had impaired visual-motor integration, visual-spatial- constructional and non-verbal abstract reasoning abilities and significant difficulties processing information. In summary, he considered that Mr Soles had significant cognitive impairment across several areas including non-verbal reasoning, information processing and visual memory abilities. These skills are relevant to participation in the Court process. Dr Sakdalan’s overall conclusion regarding Mr Soles’ ability to instruct counsel was that:

The test findings indicate that he has impaired cognitive functioning particularly in the areas of non-verbal abstract thinking, non-verbal reasoning, information processing and visual memory abilities. Furthermore, he suffers from global aphasia which impairs his verbal expression and reasoning abilities. These cognitive difficulties mentioned would negatively impact on his fitness to stand trial. His severe impairment in these areas would likely affect his ability to follow the discussions during the court process, remember information previously provided and problem solve for the purpose of generating alternative causes of action. For these reasons he considered that Mr Soles would likely be found unfit to stand trial.

Report by Dr Gardiner 14 July 2014

[20] Dr Gardiner interviewed Mr Soles on 3 July 2014. The interview was about

1½ hours long and Dr Gardiner noted that it was made difficult by Mr Soles’ problems with communication. Dr Gardiner, like Dr Kenedi, referred amongst other things to information he had obtained from Mr Soles’ family. As I have indicated, I place very limited weight on this information. Dr Gardiner described the interview as being conducted by a mix of hand signals, written notes, basic vocalisation and pointing to letters on a piece of paper to spell out words. He also recorded that Mr Soles seemed surprised to learn that he was in prison in New Zealand and indicated his belief that he was actually in the US in a veterans’ administration hospital. Nevertheless, Dr Gardiner was not concerned about his comprehension. The description of this interview suggests inconsistency in Mr Soles’ presentation. Dr Gardiner noted for example that Mr Soles’ lack of expressive language resulted in poor rapport being formed with him, but also noted that Mr Soles made reasonable

and appropriate eye contact over the course of the interview. He noted that Mr Soles seemed to have difficulty with fine motor skills at times, for example struggling to pick up a pen, but at other times showed good fine motor skills, for example adjusting his glasses.

[21] Dr Gardiner undertook some brief cognitive assessments, mainly the REY15 item test as well as some additional questions for the purposes of measuring effort on Mr Soles’ part. The REY15 item test was designed to detect feigned impairment of cognitive function. Mr Soles scored poorly in this test. The cut-off for viewing the effort as minimal is between seven and 11 items. Mr Soles’ score was 3/15.

[22] Dr Gardiner considered it unlikely that Mr Soles had had a stroke, that his symptoms were suggestive of deliberate manufacturing of symptoms of a stroke:

The evidence that is supportive of the idea that Mr Soles has had a stroke include his ongoing speech difficulties and the fact that he has significant vascular problems. His vascular problems include an entirely occluded left carotid, which normally supplies the left cerebral artery in the brain, which is often affected when strokes that affect speech occur. However, there are other mechanisms by which the left cerebral artery can gain access to blood flow, so the occlusion of the left carotid, whilst significant, is not necessarily responsible for the pathology.

The evidence that is not supportive of the idea that Mr Soles has had a stroke includes the variable nature of his speech difficulties, his intact ability to swallow, his ability to understand and comprehend what is being said to him, the lack of radiographic evidence of a stroke, the presence of abnormal neurological opinion that is supportive of a ‘functional illness’ (rather than an illness based on abnormal anatomy), the collateral accounts of Mr Soles’ presenting to medical practitioners and family with unusual symptoms aimed at gaining sympathy, medical treatment or medication, collateral accounts of Mr Soles’ claiming to know how to fake the sort of speech that those who have had strokes exhibit and a suspicion of a lack of effort in cognitive testing designed to assess effort ...

After taking these factors into account, my overall opinion is that it is unlikely that Mr Soles had a stroke in February 2014 and that his current symptoms most likely have a psychological origin ...

On balance, I am of the opinion that Mr Soles does not have a neurological basis for his speech impediment. By this, I mean that he did not have a stroke in February 2014 that has caused the symptom of ‘expression aphasia’ (the term ‘global aphasia’) refers to both a receptive language – interpreting incoming language – and an expressed language (outgoing) – component. Mr Soles, in my interview, in the medical notes and in the available collateral history, an ability to understand incoming language is documented. As Mr Soles’ presentation is largely unchanged since February 2014 (and by

this I mean that his speech has not consistently recovered or worsened and no further symptoms indicative of a stroke have been recorded) I have no reason to believe that things have changed significantly since then. There is, in my opinion, no physical reason for Mr Soles’ speech problems.

Furthermore, I am of the opinion that Mr Soles’ presentation is, on balance, suggestive of deliberate manufacturing of the symptoms of a stroke. The reasons for this are given above, but particularly suggestive are the collateral accounts of an awareness of how the stroke-affected speak, collateral history of previous presentations suggestive of use of medical symptoms as events for personal benefit, inconsistencies in observed speech deficits, poor performance in bedside tests of effort and the medical and Speech-Language Therapy opinion that strokes that affect speech would also normally affect swallowing and no evidence of swallowing deficits were present or are currently present.

Report of Professor Mellsop 12 August 2014

[23] Professor Mellsop interviewed Mr Soles on 8 August 2014. Before he did so he had access to the transcript of the Customs Investigator’s interview and the reports by Drs Sakdalan, Kenedi and Gardiner and the Auckland Hospital records. Professor Mellsop noted that Mr Soles did not answer questions with clear speech but did appear to fully understand the questions and listened attentively. He also showed good co-ordination and muscle control in manoeuvring his wheelchair. When asked to draw a clock and fill in the time he held the pen in an unlikely grip but did a neat drawing. He communicated information about the criminal proceedings such as that he was innocent of the charges, he had a lawyer, if found not guilty he would return to the United States.

[24] Professor Mellsop considered that mental impairment as a result of a stroke or upper brain pathology was unlikely:

Particularly from the Auckland Hospital records it is apparent that Mr Soles has health impairments reasonably common in a man of his age. For example, previous heart attack, peripheral neuropathy, obesity, possibly hypertension, blocked left internal carotid.

But, his cerebral circulation is apparently adequate and the objective investigations, particularly radiologic, showed no evidence of a stroke or of any other brain pathology which could cause his present symptom pattern.

There are features of his present symptoms which are specifically suggestive of simulated pathology. For example, vocalisation variations, depending on whom he is talking to; the ‘give way’ on strength testing noted by the neurologist; the somewhat Ganserish (approximate) answer to the question about how many days there are in a week; the inability to hold a pen yet his

well executed chair re-arrangement; his gradual production of clearer words when faced with my apparent inability to understand him as he wished.

My own observations of Mr Soles make it quite clear that he has neither receptive or expressive aphasia and certainly not global aphasia. He very clearly understands and can express his views. The latter most particularly in writing and by using signs and pointing. In addition, it appeared to me that his behaviour of not articulating the spoken word was not a consequence of any physical inability to do so and varied according to his motivation.

[25] Professor Mellsop considered that during the interview Mr Soles demonstrated that he understood what he was being charged with, could plead to the charge and exercise his right of challenge, understood the nature of the proceedings before the Court, could follow in general terms the course of the proceedings, understood the substantial effect of evidence against him, could respond to a charge, could decide what defence he would rely on and could instruct counsel.

Dr Sakdalan’s report 27 August 2014

[26] Following a review of Dr Gardiner’s and Professor Mellsop’s reports Dr Sakdalan re-interviewed Mr Soles on 25 and 26 August and concluded that, although there was cognitive impairment, Mr Soles was fit to stand trial. Dr Sakdalan recorded his impression that at the interviews on 25 and 26 August 2014 Mr Soles’ presentation had markedly improved from the previous interview in that he was more verbally able and able to clearly articulate his thoughts and feelings. He was, in summary, able to effectively communicate during the interview. This included Dr Sakdalan’s observation of Mr Soles’ interaction with his counsel.

[27] Nevertheless, Mr Soles appeared to Dr Sakdalan to have difficulties with short-term memory. Dr Sakdalan tested Mr Soles’ cognitive functioning using selected sub-texts of the Wechsler Adult Intelligence Scale – 4^th edition and a Repeatable Battery for the Assessment of Neuropsychological Update – Form A, the results of which indicated that Mr Soles’ had significant cognitive impairment across several areas including non-verbal reasoning, information processing and visual

memory ability.

[28] Dr Sakdalan was satisfied that Mr Soles exerted good effort during the testing and answered test items to the best of his ability. He was critical of Dr Gardiner’s

conclusion that Mr Soles had deliberately scored poorly on the REY15 item test, noting that such testing is generally within the realm of forensic neuropsychology, which is Dr Sakdalan’s expertise rather than Dr Gardiner’s expertise. He considered that it was not best practice to use only one effort test but rather to use two or more tests. He also noted that Professor Mellsop had not carried out any formal cognitive or neuropsychological assessment and had come to a hasty conclusion that Mr Soles’ cognitive functioning was relatively intact. Dr Sakdalan used two effort measures and did not see evidence of suboptimal effort.

[29] In tests administered to assess cognitive functioning Dr Sakdalan concluded that Mr Soles’ test results showed ‘severe impairment in immediate verbal narrative memory ... suggestive that Mr Soles has impaired ability in storing, retaining and retrieving verbally mediated information’.

[30] And:

... despite a marked improvement in Mr Soles’ expressive and receptive language skills and his motivation to perform well in the test, Mr Soles’ overall neurocognitive score fell in the extremely low range. His score fell in the first percentile which means that Mr Soles performed better than 1 out of 100 peers his age. The test result indicates that Mr Soles’ immediate verbal memory was slightly impaired while his attentional abilities and delayed visual and memory abilities were extremely impaired.

[31] Dr Sakdalan considered Mr Soles’ ability to understand and participate in the Court proceedings and concluded that Mr Soles was fit to stand trial, notwithstanding the level of cognitive impairment he had observed:

Despite his motivation to perform well in the assessment and his determination to be found fit to stand trial, it was evident that Mr Soles has short term memory and attentional problems. The effort testing result clearly indicated that he was not exaggerating his cognitive problems. Notwithstanding, it was still evident during the interview and testing that Mr Soles has serious cognitive problems. The test findings indicate that he has impairment neurocognitive functioning particularly in the areas of immediate and delayed verbal memory and attentional and processing speed abilities ...

These cognitive difficulties mentioned would negatively impact on his fitness to stand trial. His severe impairment in these areas would likely affect his ability to follow the discussions during the court process, remember information previously provided and problem solve for the purpose of generating alternative causes of action. It is likely that his

cognitive functioning would further deteriorate if he experiences emotional stress during this court hearing. Consequently, this would negatively impact on his ability to instruct his counsel for the purpose of mounting a defence

...

Mr Soles’ mental impairment is due to his impaired cognitive functioning. His cognitive impairment seems to be likely secondary to a neurological insult possibly a stroke. Mr Soles’ condition has markedly improved since he was assessed two months ago such that he was able to regain his expressive and receptive language skills. Notwithstanding, he still has cognitive impairment. His cognitive profile i.e. intact long-term and biological memory and impairment in information processing speed, attention and short-term memory is consistent with acquired cognitive impairment. I am of the opinion that this cognitive impairment is genuine. There is no point for Mr Soles to ‘malinger’ or exaggerate his cognitive impairment as this does not pose any external incentive for him.

I am of the opinion that superficially Mr Soles appears to be fit to stand trial. Hence, in terms of foundational competence I am of the opinion that he would most likely meet this standard. I am more concerned about his decisional competence considering that he has cognitive impairment that will impair his ability to participate meaningfully in the court process particularly if he would be expected to go through a rigorous court process where he would be required to review extensive documents over an extended period of time. At this time it is unlikely that he will be able to effectively retain the information given his memory and attentional impairment. He would feel overwhelmed with too much information and that he would require ongoing support from his lawyer to cope with cross-examination. His cognitive functioning would further deteriorate if he experiences significant stress in court.

[32] Dr Sakdalan recommended that Mr Soles be provided with adequate time to process information with additional breaks if needed and thought that he might also require assistance during cross-examination in relation to complex questions.

Is Mr Soles mentally impaired?

The principles

[33] In SR v R the Court of Appeal, addressing the linkage between mental impairment and fitness to stand trial under s 14(2), noted that in cases of insanity, recognised mental illness or intellectual disability, a finding of mental impairment such as to render the defendant unfit to stand trial will be practically inevitable but:⁴

... There may be other less severe forms of mental impairment which may

_{not have the effect of rendering the accused unfit to stand trial. That is a}

⁴ SR v R [2011] NZCA 409 at [160].

matter for judicial evaluation based on the expert evidence and assessed

against the definition of the phrase ‘unfit to stand trial’ already cited.

[34] In SR v R the Court of Appeal also approved Dobson J’s statement at first

instance that:⁵

... A mental impairment is a disorder or condition affecting the rationality of an accused to an extent that may compromise his or her fitness to stand trial. It needs to have regard not only to an accused person’s ability to understand and make a rational decision on a plea, but all subsequent aspects of conducting a defence. It is the first aspect of a two-stage inquiry. There may be recognisable impediments to a person’s rationality (i.e. he or she is mentally impaired) but then, on a second analysis, that impairment can be characterised as not sufficient to render the person unfit to stand trial.

However, a literal approach recognising any impairment to mental faculties by contrast with a mentally healthy population will broaden the concept of mental impairment beyond that which is warranted in the statutory context.

[35] I also respectfully refer to Fogarty J’s observation in R v Roberts which the

Court of Appeal cited with approval in SR v R:⁶

... An enquiry into whether or not a person is fit to stand trial is an enquiry into whether or not the person is ‘mentally impaired’ as distinct from

‘mentally disordered’ or ‘insane’. A person who is mentally disordered

and/or insane and/or intellectually disabled will be mentally impaired. But it does not follow that mentally impaired should depend upon one of those

three diagnoses. In this case the enquiry is directed to examining whether

the accused is capable of conducting a defence or instructing counsel to do so.

The second point to emphasise is that the cause of ‘due to mental impairment’ has to be applied against the task expected of the accused person. But the judgment has to be made in the context. It is not satisfied by the accused demonstrating some fundamentals of rationality. So the question is whether or not [R] is ‘unable, due to mental impairment, to conduct a [rational] defence or to instruct counsel to do so’, in this case.

My conclusion

[36] I consider it highly relevant that the clinical examinations showed no physical sign of a stroke or other neurological event. In particular, Dr Gardiner said that strokes that affect speech usually involve some other pathology or are obvious on

_{examination. If the stroke causes aphasia then it is also likely to have caused}

5. R v SR HC Wellington CRI-2009-85-8992, 17 December 2010, cited with approval in SR v R, above n 4, at [158].
6. R v Roberts Auckland HC CRI-2005-092-14492, 22 November 2006, cited in SR v R, above n 4, at [157].

difficulties swallowing, which was not a symptom recorded in any of the reports about Mr Soles. Further, he would have expected to see lesions in the temporal lobe of the brain but, as the hospital notes showed, the CT scan and MRI scans did not show any changes of concern.

[37] Secondly, the timing of Mr Soles’ apparent improvement causes me concern. As Dr Gardiner pointed out, Mr Soles’ apparent disability seemed relatively settled from February until 12 August 2014, when Professor Mellsop interviewed him. Over that period, he was interviewed four times and presented consistently. Then, in the space of two weeks, by the time Dr Sakdalan re-interviewed Mr Soles on 25 and

26 August 2014 there appeared to be a remarkably quick and significant improvement to the point that there was no longer even the suggestion of aphasia. Instead, Dr Sakdalan’s diagnosis shifted to cognitive impairment. This is not consistent with the expected pattern of recovery from a stroke.

[38] Dr Gardiner acknowledged that Mr Soles could have significant cognitive impairment due to past neurovascular incidents. Whilst that must be possible, I am unable to accept Dr Sakdalan’s assessment that this level of cognitive decline is either as significant as suggested or of a nature that would affect his fitness to stand trial. When Mr Soles arrived in New Zealand less than nine months ago he did not have the appearance of a person suffering any significant cognitive decline. He agreed to and conducted a lengthy interview with the Customs investigator. No concern was raised at that time. No concern was raised when he was remanded in December and January. The first issue of mental impairment arose in February 2014 after his admission to hospital. There is no evidence of any episode that would explain the symptoms exhibited during earlier interviews.

[39] I accept the opinion of Dr Gardiner and Professor Mellsop that the symptoms of stroke or other neurological event as presented during the interviews with them were feigned. Further, it is evident, even on Dr Sakdalan’s most recent report, that Mr Soles fully comprehends the nature of the proceedings against him and is capable of instructing counsel. Any difficulties he faces in terms of following the proceedings and requiring additional breaks seem to me symptomatic of an elderly defendant facing trial in a foreign country. They are understandable challenges but

they are not signs of mental impairment. They are matters properly dealt with by the trial Judge who can be expected to offer whatever accommodation is reasonably possible.

[40] For the reasons discussed above, I am not satisfied that Mr Soles is mentally impaired and I find that he is fit to stand trial.

P Courtney J