The dementia defence
With rates of senility growing, Tommy Livingston reports on the increasing number of defendants raising it to avoid being tried for serious crimes.
On a good day, Michael ‘Mickey B’ Byrne can be seen outside his Ponsonby gym chatting to friends. But it wasn’t long ago he was in the dock, facing years in prison for being part of an international cocaine ring.
In 2013, Byrne was charged with being part of a multi-million dollar cocaine business along with amateur football player Kindness Agwu and gang member Bert Jury.
Agwu had arranged shipments of cocaine from South America, which were then distributed and sold out of Byrne’s gym by Jury and others.
Agwu got 17-years, Jury got nine, and Byrne walked. The judge ruled based on the balance of probabilities he was guilty, but because he had mild dementia and a degenerative brain disease, he was found unfit to stand trial.
These days he still runs his gym, Mickey B Fitness. This week he dismissed the charges as ‘‘bullshit’’. He says he still has his degenerative brian disease, and eventually will get dementia, although he doesn’t have it now.
If predictions prove true, the number of people suffering from the disease in New Zealand will triple in the next 50 years. This is already having a flow on effect in the criminal justice system, with the amount of people found unfit to stand trial quadrupling in the past 12 years.
There is no argument dementia is debilitating, but is the court adequately equipped to deal with the increasing number of claims, and is it being used as a get-out-ofjail free card?
In 2016, some 60,000 Kiwis suffered dementia in varying degrees. Catherine Hall from Alzheimer’s New Zealand believes the number of those diagnosed will jump past 170,000 by 2050.
‘‘That is directly related to the aging population,’’ she said.
‘‘Based on the international research, dementia disproportionately effects woman. The numbers for woman are 30 percent higher because woman live longer.’’
Dementia is an umbrella term which describes an illness of the brain. The most common form of dementia is Alzheimer’s – which about two-thirds of dementia sufferers have.
The devil is in the detail when it comes to the disease. Each case is different and disabling in its own way. But just because someone has dementia doesn’t necessarily mean they can’t function, according to Hall.
‘‘A diagnosis of dementia doesn’t automatically mean a person lacks capacity. Indeed, people can maintain their capacity for some, most, or all of the time they are living with dementia.’’
Legislation makes clear someone can only be tried for a crime if they are able to understand and instruct their counsel.
The decision to deem someone fit is up to a judge, who relies on expert medical advice.
‘‘As a matter of fairness, no person should be put on trial when they can’t participate meaningfully in it,’’ Auckland University law professor Warren Brookbanks says.
Unfitness is usually raised by defence counsel who alert the court their client is struggling to give advice, or understand the process.
‘‘On rare occasions a judge may raise the issue on his or her own motion in the absence of an application by counsel.’’
Unfitness can come in a number of forms; insanity, head injuries and so on.
There are largely two options for someone who is found unfit – either they are admitted as a special patient to a forensic unit, such as Auckland’s Mason Clinic, or they are made a civil patient in the mental health system.
That was the case for Leonard James Mulholland who was found unfit to face 95 charges in 2015 for sexually abusing boys. He was ordered into a secure facility.
But Brookbanks points out it is a ‘‘messy’’ area of the law. For instance, if someone is found unfit and admitted to the mental health system, they can quickly be discharged and never go back to court.
But for a special patient, their case can be kept under continual review. If the Minister of Health receives advice the person is no longer deemed a risk they have the power to release them, or order the trial re-commence if they have regained their fitness.
In some unusual cases defendants are neither a special patient or detained under the Mental Health Act, but instead walk free.
In 2005, 34 people were found unfit to stand trial, by 2010 it was 60, and by 2015 it was 126. The reason behind the rise is unclear, but Brookbanks believes increasing numbers will be dementia patients.
‘‘We can expect to see more cases arising where dementia is advanced as a relevant mental impairment which triggers the unfitness to stand trial process.’’
This month Wellington businessman Ngatata Love’s appeal against his conviction on the grounds he was unfit to stand trial was chucked out.
The Court of Appeal ruled Ngatata had dementia, but backed the original decision to allow him to stand trial, deciding he was still fit to give instruction and understand proceedings at the time.
But his daughter Catherine Love believes her father was duped, and a perfect example of someone who fell through the cracks. A qualified psychiatrist, she says her father has frontal-lobe dementia.
According to her, he understands broad concepts, but has no understanding of finer details. She believes he was confused and unaware about much of what was going on at trial.
‘‘He asked me a week after the trial, ‘You know that trial that was on? Is it finished now?’
‘‘I said ‘yes Dad’, and he asked, ‘Was I found guilty?’ ‘‘It was an absolute farce.’’ Throughout his trail, Ngatata would often retreat into his room to spend time alone, according to his daughter.
‘‘For us as a family it was heartbreaking and unjust, most unjust. He was confused and perplexed most of the time, he understood only some of it.’’
Now serving a two and a half year prison sentence, medical reports suggest Ngatata’s mental state has deteriorated further, according to Love.
‘‘A large and well-resourced Crown prosecution team sought to play legal games around our father, who was quite clearly extremely unwell and unable to defend himself or instruct.’’
The case highlighted the complexity of the fitness criteria, and reflects defence lawyer Michael Bott’s belief that there are people who are made to go through a trial who shouldn’t.
‘‘I would say that there may always be expectations to the rule, but more often than not there are people who should be found unfit to stand trial, who should have some mitigation for their disability or dementia.
‘‘But they go through the system and end up punished in the normal way when arguably they shouldn’t be.’’
Bott rubbishes the claim there are those who play up their sickness in order to get off. As he points out, it is very difficult to fake the brain scans and cognitive tests conducted when trying to determine someone’s fitness.
‘‘That hardly ever happens. It is people who have got dementia, or an intellectual disability, who are missed by the court and processed in the normal way.’’
In 2009, William Cornelius, was charged with the rape, abduction and unlawful sexual connection of four teenagers who were lured to his remote Mangatiti Valley property near Raetihi, south west of the Tongariro National Park.
Four years and 27 hearings later the case against Cornelius was dismissed after he was deemed unfit to stand trial because of mild dementia.
One of his victims Heather Walsh later waived name suppression and narrated a TV docudrama about Cornelius.
‘‘I feel it’s important, as the general public understands dementia to be a very debilitating condition to be in, which he was not,’’ she said in 2015.
A judge ruled on the balance of probabilities he had committed the crimes.
But Cornelius was never convicted.
He walked out of the courtroom that day back to his property in the Mangatiti Valley. He stayed there until he died suddenly four months later.
According to victim advocate Graeme Moyle, the judiciary needs to tread carefully when determining how severely a defendant is affected by dementia.
‘‘This term of using mild dementia, especially in the Cornelius case, is off. Half the population probably fits into that category.
‘‘You forget where you left your keys, you forget maybe a conversation you had, or when it took place, but it doesn’t mean you don’t know what is going on around you.’’
Those found unfit are often never deemed guilty, a subtle distinction that often pains victims. Moyle’s own brother was killed by a man who was later found unfit to stand trial. He remains a mental health patient.
‘‘There is not resolution to anything, especially if it is a pretty serious crime,’’ he says.
‘‘The victim is left in limbo, with no light at the end of the tunnel. It just hangs over them the whole time.’’
As the population hobbles toward old age, the courts will continue to hear arguments about the fitness of defendants.
Brookbanks says defence lawyers will continue to seek new angles to defend their clients. ‘‘Unfitness is a form of defence.’’
Some will argue the courts need to remain on guard against the creep of the dementia defence.
Others will defend the right to a fair trial and declare the dangers of putting someone through a judicial process they don’t understand.
Justice is at the core of both arguments, but where the balance lies is up for debate.
We can expect to see more cases arising where dementia is advanced as a relevant mental impairment which triggers the unfitness to stand trial process. Warren Brookbanks