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Cumming v R

Cumming v R

Case [2008] NZSC 39 15 May 2008

Mental Disorder

Unfitness to Stand Trial

Miscarriage of Justice

Appeal

Criminal Law

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IN THE SUPREME COURT OF NEW ZEALAND
SC 72/2005
[2008] NZSC 39
JASON JOHN CUMMING
v
THE QUEEN
Hearing:19 October 2006 and 28 February 2008

Court:Elias CJ, Blanchard, Tipping, Anderson and Gault JJ
Counsel:R M Lithgow QC and N Levy for Appellant

J C Pike and M D Downs for Crown
R E Harrison QC Amicus Curiae (on 28 February 2008)

Judgment:15 May 2008

JUDGMENT OF THE COURT

A THE APPEAL IS ALLOWED.

B The convictions are set aside.

C A new trial is ordered.

REASONS
(Given by Anderson J)
[1]       In November 2002 Mr Cumming was tried, without counsel, and convicted of serious crimes. At various times before his trial began counsel had represented him. Some he dismissed; others decided they could not continue to act in view of allegations he had made against them. The Court appointed one of the latter, Mr S J Shamy, as amicus curiae to assist at the trial — notwithstanding this, Mr Cumming defended himself in a way that was extremely aberrant and self‑damaging. An appeal to the Court of Appeal was dismissed. The information considered by this Court, including reports it caused to be obtained from expert psychiatrists, has satisfied us that throughout his trial Mr Cumming was severely mentally disordered. The issue on this appeal is whether Mr Cumming’s convictions ought to be quashed on the grounds that a miscarriage of justice has been occasioned by his mental condition.
[2]       In about August 2001 the complainant, a woman in her late teens, met Mr Cumming and began spending nights at his home. According to her, Mr Cumming acted in a very controlling and sexually demanding way. She said that he would keep the doors and windows locked and accuse her of talking to neighbours through the walls and of knocking him out at night with nunchukku[1] so that she could escape and have sex with others. She left him at one point, but returned to his home some weeks later in order to leave him a message. He persuaded her to stay and after a few days, she said, he again mistreated her. He would not let her out of his sight even when she used the lavatory. He kept the doors locked and stapled up the windows. She said he padlocked her to the bed at night and although they sometimes went out to the shops he kept her under his power and control. Eventually she managed to escape. During the time she was with him he allegedly committed numerous sexual violations and assaults on her, leading to representative counts of sexual violation by rape and unlawful sexual connection and other offences against the person including detaining with intent to have sexual intercourse. Having been convicted on all eight counts in the indictment Mr Cumming was sentenced to preventive detention.
[1]     A Japanese weapon consisting of two hardwood rods linked with a cord.
[3]       The way Mr Cumming conducted…

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 Cumming v R

Details

AGLC: Cumming v R [2008] NZSC 39
Case: [2008] NZSC 39
Decision Date: 15 May 2008

CaseChat Overview and Summary

The Supreme Court of New Zealand heard the case of Cumming v R, where Jason John Cumming appealed against his convictions for serious crimes, including sexual violation by rape and unlawful sexual connection, and other offences against the person. Cumming had represented himself at trial, which was deemed extremely aberrant and self-damaging due to his severe mental disorder. The Court of Appeal dismissed the appeal, but the Supreme Court granted leave to appeal and heard the case on 19 October 2006 and 28 February 2008. The court had to decide whether Cumming's convictions should be quashed due to a miscarriage of justice caused by his mental condition. The court found that Cumming was severely mentally disordered during his trial, which impaired his ability to communicate with counsel and conduct his defence. This led to a miscarriage of justice, and the appeal was allowed. The convictions were set aside, and a new trial was ordered.

The court considered the statutory provisions relating to the trial of mentally disordered persons, both under the Criminal Justice Act 1985 and the Criminal Procedure (Mentally Impaired Persons) Act 2003. These statutes outline the procedures for determining whether a defendant is "under disability" or "unfit to stand trial" due to mental disorder. The court found that Cumming's mental disorder made him unfit to stand trial, as he was unable to adequately communicate with counsel and conduct a defence. The court also examined reports from various psychiatrists and psychologists, which confirmed Cumming's severe mental disorder and inability to represent himself at trial.

The Supreme Court concluded that Cumming's mental disorder caused a substantial miscarriage of justice and allowed the appeal. The convictions were set aside, and a new trial was ordered. The court emphasised that the decision to order a retrial was not for it to make, as it may be affected by any future inquiry into Cumming's fitness to stand trial under the present legislative provisions.

Orders