R v Cumming Ca43/03
[2005] NZCA 260
•2 November 2005
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA43/03
THE QUEEN
v
JASON JOHN CUMMING
Hearing:6 April 2005
Court:McGrath, Hammond and O'Regan JJ
Counsel:R M Lithgow and S J Shamy for Appellant
J C Pike and J A Farrish for Crown
Judgment:2 November 2005
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
REASONS
(Given by McGrath J)
Table of Contents Paragraph
NumberIntroduction [1] Background [4] The trial [10] Submissions on conviction appeal [14] The medical evidence [26] Principles [37] Appellant’s defence [53] Was there a fair trial? [60] CROWN’S FINAL ADDRESS [73] Summing up [75] Sentence appeal [80] Conclusion [85]
Introduction
[1] Mr Cumming appeals against his conviction, following a jury trial in the High Court, on counts of sexual offending against a seventeen year old woman over a period of two weeks during October 2001. He was sentenced to preventive detention and he also appeals against that sentence.
[2] The appellant had exercised his right to represent himself at his trial and the principal ground of his appeal against conviction is that he did not receive a fair trial because his mental disability detrimentally affected his conduct of his defence. Other grounds of appeal include a challenge to part of the trial Judge’s summing up.
[3] The appellant was represented by counsel at the High Court sentencing hearing. It is submitted on his behalf, in support of the sentence appeal, that the manner in which he conducted his defence at the trial unfairly impacted on the sentence imposed on him.
Background
[4] On 14 November 2002 the appellant was convicted, following a jury trial, before Panckhurst J at the High Court in Christchurch, of representative charges of rape, unlawful sexual connection, and attempted sexual violation. He was also convicted of two charges of detaining the complainant for sexual purposes, two charges of assault with a weapon, and two charges of assaulting a female, all arising from individual instances of offending. He was later sentenced to preventive detention, with a minimum non-parole period of seven and a half years’ imprisonment.
[5] The Crown’s case was that the complainant, when sixteen years of age, had commenced a relationship with the appellant, then aged 28 years, several months before the offending took place. It soon became apparent to the complainant that the appellant suffered from serious paranoia and had a desire to control her. He would keep all doors and windows of their flat locked, and the curtains drawn, so that no‑one could see inside. He would also tell her to be back by a certain time, whenever she left to visit her mother, and if she was late returning he would accuse her of having had sex with someone else. At one point, the complainant stayed at a women’s refuge for two weeks after the appellant had ordered her out of the flat.
[6] Between 15 and 28 October 2001, the appellant developed a paranoiac concern about the complainant having sex with other men and conspiring with associates, who were gang members and intended to harm him. He kept the doors of the flat locked, the windows latched at all times, and forced the complainant to remain in his presence in the house, following him whenever he moved about. The appellant would make extensive sexual demands of the complainant, which she acceded to only because she was scared of him. He was often rough with her, pulling her hair and punching her around the face and body. The appellant also assaulted the complainant with a toothbrush, once attempting to poke out her eye. He would hit her with a nunchaku (a weapon consisting of two sticks joined at their ends by a short length of cord). He only permitted her to put on her clothes if they were going out somewhere.
[7] At night, the complainant was invariably chained and usually attached to the appellant, by padlocked chains around her ankles which were also tied around his ankles. He would not allow her to go to the toilet at night. Sometimes her arms were tied behind her back and she was often gagged.
[8] The complainant eventually escaped when she and the appellant went out with two of the appellant’s friends. She told him that she wanted to get out of the car to go and see her mother, and a struggle ensued after he told her that he would not let her do so. She managed to escape when the vest she was wearing came off. She ran to a dairy where a female customer called the police. The appellant was then arrested.
[9] The complainant was medically examined. She suffered from numerous bruises, and also a vaginal infection caused by restrictions on her use of the bathroom.
The trial
[10] On 15 July 2002 Dr Miller, a psychiatrist, reported to the High Court on the appellant’s fitness to plead to the charges. Following an earlier examination he had concluded that the appellant was not under a disability and did not have a psychiatric defence. Subsequently observations of him in prison and by his lawyers indicated a readiness by the appellant to interpret statements and actions of others in a suspicious way. At the time it appeared to Dr Miller from the appellant’s use of language, his command of the written word and background, that he was not intellectually disabled.
[11] Dr Miller did not observe any systemised delusional quality to the appellant’s behaviour and he did not consider it consistent with mental illness. The appellant denied all aspects of the complainant’s allegations but was aware of the potential term of imprisonment he faced if he was found guilty. He displayed features of a severe personality disorder with anti-social narcissistic and paranoid features for which no treatment was available. Dr Miller predicted that, as a result of these personality characteristics, the appellant might prove disruptive during the trial.
[12] The appellant pleaded not guilty and decided to represent himself at his trial. Prior to the trial Panckhurst J had appointed Mr Shamy, one of several lawyers who had acted for the appellant since his arrest but had been dismissed, as amicus, to assist the accused. Shortly before the trial, following a hearing at which both the appellant and Mr Shamy were present, the Judge issued a minute recording that the appellant had been provided with an information sheet headed “Information for an Accused Person not Represented in Court”. This document gave information concerning the accused’s right to challenge jurors, about trial procedure generally, and also gave a caution over whether to elect to give evidence. The Judge recorded that at the hearing he had a discussion with the appellant in an endeavour to ensure that he adequately understood his rights in relation to these matters. As best he could judge the appellant did understand them. At the Judge’s request Mr Shamy agreed to remain as amicus throughout the trial to assist the appellant. No issue was taken with these matters in the appeal.
[13] The appellant acknowledged that he slept in the same bed as the complainant over the period covered by the charges but maintained that he did not at any time exercise force on her, or coerce her to have sex with him. He undertook a long and drawn out cross-examination of the complainant, which lasted for more than a day, and which at times was highly repetitive and dwelt on irrelevant matters. He also cross-examined other witnesses. He gave evidence on his own account, was cross-examined by the prosecutor, and also called other witnesses in his defence. The jury convicted him on all charges he faced.
Submissions on conviction appeal
[14] Mr Lithgow, who had not previously been instructed by the appellant, was senior counsel representing him in this Court. Junior counsel was Mr Shamy, who in addition to assisting the appellant at the trial as amicus had also appeared on his instructions as counsel for the appellant at sentencing.
[15] In his submissions Mr Lithgow said that the appellant had demonstrated during the trial his inability, because of his mental difficulties and his unmedicated state, to make out his case or to meet that of the Crown. Counsel illustrated the point by referring first to a question from the jury to the judge towards the end of the trial:-
Sir,
How come this is a fair trial? At least some of us are seriously troubled to be asked to make decisions from such a lop-sided presentation, especially given the high stakes.
The Judge responded during his summing up, telling the jury of Mr Cumming’s right to represent himself; that he had lawyers on legal aid acting for him at an earlier stage; that the Judge had appointed Mr Shamy as amicus to assist the appellant; and, above all, that the jury had to decide the case on the evidence they had heard in Court. Ultimately, if the trial was unfair, that matter could be raised in the Court of Appeal.
[16] Secondly, Mr Lithgow, without objection, put before us a report of the trial in The Press newspaper which referred to the appellant’s lack of awareness of how odd his story was and also to the “serious problem” that the appellant did not trust his lawyers enough to instruct them, or to accept their work on his behalf. The specific passage in the article referred to by Mr Lithgow in the course of his submissions (without any deletions) reads:
Cumming did not seem aware of how odd his story is. He genuinely expected people to believe it. He was examined beforehand by two psychiatrists, and was found to be fit to stand trial. He communicates all right, and he knows what is going on, but it was a serious problem that he did not trust his lawyers enough to give full instructions and accept their work on his behalf. (His nutty behaviour emerged during the trial. He had “performed” at earlier court appearances in the lead-up to the trial, shouting from the dock) and accusing lawyers of being corrupt and part of a conspiracy against him. At least once, he had to be physically removed from the court by the police escort staff, but once the trial started, his behaviour settled as though he knew it was his only chance. But he would keep asking the same questions a few minutes apart, even when told by Justice Panckhurst to move on. It was apparently not that he could not remember, but that he did not take any notice of the answers he had already been given. Direct questions from Justice Panckhurst were met with paper-shuffling and long silences. The questions often had to be repeated, sometimes loudly. The end result was eight convictions. Cumming tried to convince the court that some very odd things had happened during the abduction. He said the woman had many chances to get away, or to ask for help, and did not take them. They went out almost daily. It was material that a good lawyer might have been able to make something out of. But Cumming had sacked four of them.
It wasn’t only a teenage girl’s words that sank Jason John Cumming. It was her eyes. She was telling the High Court that he had dominated her and kept her captive, tied her and chained her, raped and abused her for eight days. It was a long story, and by the time Cumming, who defended himself in the eight-day trial, had finished cross-examining her she had stayed in the witness box for more than a day and a half. Throughout all that, the message of her eyes was clear enough; she could not bear to look at him. She answered his questions, leaning forward to the microphone each time, but her eyes never swivelled right, to where he was standing. They stayed straight ahead, towards the jury box. Amid the tears and the embarrassment, her message was getting across in body language as much as testimony. But 29-year-old Cumming never seemed to grasp that. He had no chance. Her evidence was direct and precise. She told what happened without embellishments, and he story stayed basically unshaken. Cumming kept repeating questions, covering old ground, until told by Justice Panckhurst to move on. The result was that the jury heard the victim’s story not once, but three or four times. There were long pauses while he thought of questions, and shuffled papers. The trial judge’s frustrations showed only once in the courtroom. Late on the fourth day, he whacked the bench in front of him and told Cumming to ask a particular question instead of wasting time. That was the day the jury’s views began to emerge. By then, some of them were laughing openly at the accused’s questions, which were digging his own hole deeper every hour. He own evidence on day six of the trial met the same reaction. He got to tell his story then. He just does not understand how strange it sounds.
[17] The argument we heard concerning the appellant’s inability to make out his case was based on medical reports that were obtained by counsel for the appellant and the Crown since the trial and put before this Court by consent. The report submitted on the appellant’s behalf indicated that the appellant had been prescribed methylphenidate (ritalin) late in 2000, following psychiatric assessment and a trial of other drug therapy, without satisfactory results. Improvements in his state were observed. Following the appellant’s arrest on 28 October 2001 he had ceased to have access to ritalin until well after he had been convicted and sentenced. Observation of the appellant’s behaviour when interviewed in custody on 31 October 2001 indicated similarities with his behaviour before ritalin was prescribed, during the trial, and subsequently. That changed when he was prescribed ritalin again after he had been sentenced. The report concluded that in his untreated state it was beyond the appellant’s capacity to defend himself against the charges. Even with ritalin treatment, he would not have been able to conduct his defence at the trial, but if he had been treated at the time he would have been able to recognise his need for assistance and probably would have been able to accept such assistance.
[18] Mr Lithgow relied on this report to submit that, had the appellant been medicated, he would have seen that he needed to have a lawyer and would have wanted to use a lawyer to conduct his defence. He argued that in a case such as the present the Judge was bound to inquire during the trial, on a continuing basis, into the appellant’s ability to defend himself. Due to his state, the appellant had not been able to understand the ramifications of his decision about self representation, nor able to make points in support of his defence by cross-examination. The problem of his unmedicated state had been compounded by the appellant’s low intelligence. Mr Lithgow also submitted that interventions by the Judge, who he said became frustrated with the appellant’s conduct during the trial, had compounded the problem of the appellant’s incapacity. He was critical of observations by the Judge concerning the appellant’s conduct during the trial. The overall outcome, counsel submitted, was that the appellant did not receive a fair trial.
[19] Mr Lithgow also argued that the Judge’s summing up to the jury was inadequate to address the special features of this case. He was critical of passages dealing with the standard of proof including the level of doubt that would exclude a conviction, and how the jury should treat the appellant’s evidence. Finally counsel made some criticism of the manner of the Crown’s closing address and the fact that there was an address by the Crown against an unrepresented accused.
[20] Mr Lithgow acknowledged that an accused’s statutory right to represent himself at trial was an important one, but argued that it was subservient to the right to a fair trial. He referred to the decision of the United States Supreme Court in Faretta v California 422 US 806 (1975) where a trial judge had imposed a public defender on an accused who wished to represent himself. That decision was upheld by Californian appellate courts, but reversed by the Supreme Court, in a majority decision. Mr Lithgow sought to distinguish the majority judgments by arguing that for the right of self representation to be validly exercised an accused had to knowingly and intelligently waive the benefits of representation by counsel, which had not happened in the present case because of the appellant’s mental difficulties. The present appellant had been incapable of waiving his rights to a fair trial in favour of representing himself, due to his unmedicated state. Counsel also relied on the dissenting judgments in Faretta, the tenor of which was that the right to a fair trial outweighed an accused person’s right to choose to be self-represented.
[21] For the Crown, Mr Pike submitted that it was neither the appellant’s intellectual disability, nor his attention deficit hyperactivity disorder (ADHD), that was responsible for his extraordinary conduct of and during the trial. That was rather a product of his paranoiac distrust of those who had earlier been engaged in working on his defence which led him to reject them, and to advance his own defence principally through a protracted and unfocussed cross-examination of the complainant. The appellant however had, according to Mr Pike, a strategy throughout and an sense of the important issues. His cross-examination of witnesses had not been an ineffective one.
[22] Mr Pike accepted that the case involved an irrational accused who had made a choice to represent himself that was contrary to his best interests, but he did not accept that he had done so under a disability. For policy reasons the appellant’s competence to take the decision to represent himself had to be assessed according to the same test as whether the appellant was competent to plead. Mr Pike argued that the appellant understood the significance of the choice he had made to the extent required. While he suffered from paranoia, there was no evidence that this had impaired the appellant’s cognitive functions.
[23] Mr Pike argued that the medical reports put before this Court said no more concerning the appellant’s unmedicated state than that his focus might have improved had he been treated with ritalin at the time of his trial. It did not follow that he would have instructed counsel to defend him, or that he would have accepted more help given his fixed belief in his innocence and faith that he could demonstrate it to a jury. The appellant was much more likely to have persisted with his own defence and cross-examination.
[24] Overall, Mr Pike emphasised that the appellant had been able to raise with the complainant the matters which, to his mind, showed she had been untruthful about assaults and sexual abuse, and had conspired with other witnesses against him. He had availed himself of the assistance of the Court appointed amicus whom he had regularly consulted during the trial. His cross-examination of the complainant was not hopeless and in passages was far from that.
[25] On the ground concerning the prosecutor’s closing address Mr Pike emphasised that the Crown had a statutory right to address the jury even though the appellant was unrepresented and characterised the Judge’s interventions as moderate.
The medical evidence
[26] At the time the appellant was sentenced, a psychiatrist, Associate Professor Brinded, prepared a report on him for the sentencing Judge, because the Court was to give consideration to a sentence of preventive detention. Dr Brinded concluded that the appellant suffered from paranoid delusional disorder. The delusional beliefs concerned the gang related threats to his life, and that the complainant was a gang associate. He also probably had a personality disorder. When sentencing the appellant Panckhurst J observed that the description of the delusional elements of the appellant’s condition were consistent with his behaviour at the trial. Given his denial of the offending, it was difficult to assess the likelihood of the appellant reoffending. The paranoid delusional disorder was however treatable and its full extent would be better appreciated if the appellant received treatment.
[27] A clinical psychologist, Mr Prince, also reported to the Court at that time and was also of the opinion that the appellant had both a paranoid personality disorder and a delusional disorder. This did not however provide a reasonable explanation for his sexual offending.
[28] After sentencing, efforts were made over a period to get the appellant into a clinical environment to determine if he suffered from a mental disorder and if it was possible to initiate treatment. Eventually, an opportunity arose for the appellant to be treated at Wakari Hospital in Otago and he was transferred there from prison at Paremoremo. Subsequently, at Mr Lithgow’s request, Dr Brunet, a psychiatrist, who had observed the appellant at Wakari over a lengthy period, prepared a detailed report on him which by consent was put before this Court.
[29] Dr Brunet’s report referred to previous psychological testing which showed the appellant to be in an extremely low range of intellectual ability, at the bottom 0.1% of the population, indicating moderate mental retardation. That was not, however, consistent with his clinical presentation which had indicated borderline intellectual functioning but not that he was technically mentally retarded. The appellant had subsequently been reassessed in March 2002, following his initial ritalin treatment, with identical test results. On both occasions he had performed poorly on a test of attention and concentration. Other tests variously indicated that prior to treatment he had many problems with process skills including difficulty in initiating, logically sequencing and completing tasks. After treatment his process skills increased and he showed improvement in his ability to pay attention and organise his actions.
[30] Following his arrival at Wakari Hospital, and after reviewing his past records, Dr Brunet started methylphenidate treatment, which she said led to a remarkable improvement in the appellant’s ADHD symptoms. Dr Brunet reported:
His restlessness decreased significantly. He became calmer, polite, patient and able to pay attention. His eye contact and social skills improved substantially. He was also able to pay attention to conversations, allow others to finish and was more able to respond appropriately to the content of a conversation. He reported an increased ability to understand discussions as well as less distractibility; he characterised this as there being less “white noise” in his immediate environment. He also reported that he was better able to pay attention to how he was thinking and feeling. He went from being barely able to tolerate a 15-minute interview to easily sitting still and talking for an hour or longer.
[31] The report goes on to outline Dr Brunet’s opinion on how the appellant’s ADHD and other difficulties had affected his ability to represent himself at his trial. This part of the report draws on the transcript of the trial and Dr Brunet reviews elements of the appellant’s conduct at the time. She concludes that he was “concrete, repetitive and overly focussed on seemingly minor or irrelevant details”, that his questions of witnesses often seemed to have no point and at times generated frustration and irritation, in particular with the need for them to repeat answers. Dr Brunet also observed “reading between the lines” that it seemed that witnesses assumed the appellant’s conduct was deliberate rather than due to limitations imposed by his intellect, personality and ADHD. She then adds:
Having had extensive opportunities to discuss the transcript and trial with Mr Cumming, it has become obvious to me that Mr Cumming was, at the time and now, reasonably aware of the points he needed to make in court. He had a strategy in mind and some sense of the important issues that needed to be brought forth.
Unfortunately, as the trial transcript clearly demonstrates, Mr Cumming was sufficiently disorganised in his thinking and approach that he was unable to get his points across. Mr Cumming has great difficulty focussing, concentrating and processing information when he is not treated for the ADHD.
He indicated that it was likely that even if he had been advised that he needed help it would have been “in one ear and out the other”. He was unable to listen to others and was so focussed on his belief in his innocence that he was unable to consider issues beyond this. He wrongly assumed that it would be a straightforward matter to present his evidence and position to the jury and was not aware that he was not accomplishing this task.
[32] Dr Brunet’s overall opinion was that the appellant’s difficulties were of such a degree that they seriously compromised the appellant’s trial performance and from a psychiatric perspective rendered him unable to represent himself:
In an untreated state it was beyond his ability to understand and appropriately manage what was required of him to capably defend himself against such serious charges. It is my opinion that even with treatment of his ADHD he would not have been capable of representing himself; however, if he had been treated at the time he would have been able to recognise that he needed assistance and he would have been able to accept such assistance.
[33] At the request of the Crown Dr Brunet’s report was reviewed by Dr Brinded. He said that the diagnosis of ADHD in adulthood was somewhat controversial but gaining more acceptance. That diagnosis of the appellant in 2000 had been reasonable and, on balance was accepted by Dr Brinded. Cardinal features of adult ADHD were inattention, hyperactivity and impulsiveness. Many suffered from anti-social, depressive and anxiety disorders. However persecutory ideas were not a component of ADHD and the diagnosis did not encompass that element of the appellant’s mental state. Dr Brinded considered some of the appellant’s inattention or impulsiveness may result from ADHD. The appellant’s borderline intellectual capacity and anti-social personality traits also would have contributed to his presentation at the time. But his persecutory type delusional disorder made the most profound contribution, as evidenced by frequent paranoid thinking and explanations. This was not linked to his ADHD.
[34] We consider that the two reports should be read together. Dr Brunet’s opinion that the conditions that the appellant suffered from resulted in his incapacity to represent himself is based on her perception of the effect of the appellant’s intellectual problems coupled with his attentional problems. Treatment would not have affected the former. The latter problems derived from his ADHD and in her view would have been addressed, to some extent, had he been treated during the trial. The extent would have enabled him to recognise his need for assistance and accept assistance. This result would presumably be achieved through the effect of treatment on the appellant’s capacity to focus, concentrate, listen to others and process information. The limited effect is because the appellant’s borderline intellectual capacity would remain and that was a substantial factor contributing to what Dr Brunet considered was the appellant’s incapacity to represent himself.
[35] Dr Brinded regarded the appellant’s paranoid delusionary condition, rather than his intellectual limitations or his ADHD, as the principal factor driving his thinking and behaviour during the trial. He points out that the impact of this disorder on his condition is not taken into account in Dr Brunet’s analysis. Dr Brinded accepted the diagnosis of ADHD but not that it was a credible explanation for the appellant’s trial conduct.
[36] We accept that the paranoid delusionary condition had some impact on the appellant’s decisions and actions prior to and during the trial, along with his borderline intellectual capacity, antisocial personality traits and ADHD. The ultimate question in this appeal is whether the appellant’s mental condition coupled with the manner in which the trial was conducted denied him his rights as an accused person who was being tried on serious criminal charges.
Principles
[37] This appeal is concerned with the principle that an accused person must be fit to stand trial. The context is the case of an accused who, while suffering from mental difficulties, chose to represent himself at his trial. The requirement that an accused has the capacity to participate meaningfully in the trial rests on considerations such as trial fairness, humanity, and the need for public appreciation of and respect for the dignity of the criminal process. There is a thoughtful discussion of the general question in Freckleton “Assessment of Fitness to Stand Trial” in Legal Research Foundation Fitness to Plead Under Disability in the 90s (1995) 13.
[38] At issue are fundamental rights of persons charged with a criminal offence and protected minimum standards of criminal procedure. The first right, affirmed by s 25(a) of the New Zealand Bill of Rights Act 1990, is that every person charged with an offence has the right to a fair trial. It is closely linked to the right of all accused persons to be present at, and to present a defence at, their trial (s 25(e)). The right to be present extends to being psychologically as well as physically present at the trial in the sense that the accused must understand what is going on. An important element of the right to present a defence is that accused persons are capable of appreciating the prosecution case and effectively defending the charges. In other words the accused must rationally be able to understand the proceeding and functionally able to defend it through participation in the trial process (Brookbanks “Judicial Determination of Fitness to Plead” (1992) 7 Otago LR 520, 521).
[39] From the time they are charged, accused persons are also entitled to the assistance of counsel in the conduct of their defence (s 24(f)). This right extends both to assistance in the formulation of the defence, and in advancing it at the trial . The right to legal assistance is to be without cost to the charged person if that person is without means and the interests of justice so require.
[40] The Bill of Rights does not however oblige accused persons to be represented by counsel. They have the right to conduct their defence personally at the trial. In New Zealand law the right to be self-represented is not expressly stated in the Bill of Rights but is provided for in s 354 of the Crimes Act 1961:
354 Right to be defended
Every person accused of any crime may make his full defence thereto by himself or by counsel.
[41] This right is explicitly recognised in several international human rights instruments. For example Article 14(3)(d) of the International Covenant on Civil and Political Rights gives every person charged with an offence the right:
To be tried in his presence, and to defend himself in person or through legal assistance of his choosing.
Article 6(3)(d) of the European Convention on Human Rights is to the same effect. International authorities also indicate that there is some uncertainty over whether a state is permitted to insist on the appointment of counsel in a criminal trial when that is contrary to the appellant’s wishes: Harris and Joseph The International Covenant on Civil and Political Rights in United Kingdom Law (1995) at 225; Nowak U.N. Covenant on Civil and Political Rights (1993) pp258-261.
[42] The right to be self-represented when defending charges at a criminal trial reflects the principle that accused persons are entitled to choose their defences to the charges that they face, to determine the content of those defences, and to present them in the manner they choose to the Court determining the charges. The purpose of the right to self-representation has been described by the Supreme Court of the United States as being “to affirm the dignity and autonomy” of the accused person in addressing criminal charges: McKaskle v Wiggins 456 US 168 (1984) per O’Connor J. In delivering the majority opinion of the Supreme Court in its leading decision on the right to self-representation in Faretta v California 422 US 806 (1975) – an opinion which Douglas, Brennan, White, Marshall and Powell JJ all joined – Stewart J at 820 said that the right is:
given directly to the accused; for it is he that suffers the consequences if the defence fails
Later at 834, citing Brennan J in a concurring judgment in Illinois v Allen 397 US 337, 350-351, Stewart J added:
The right to defend is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honored out of “that respect of the individual which is the lifeblood of the law.”
The decision of the Supreme Court of Canada in R v Swain (1991) 63 CCC(3d) 481, 504 per Lamer CJC is to the same effect.
[43] The exercise by accused persons of their right to conduct the defence personally accordingly is not premised on an expectation that they will do so in a skilful or effective manner. The context of intended self-representation does not permit the court, when considering if ss 24 and 25 rights are infringed, to take into account whether the decision to dispense with counsel is in accordance with the accused’s best interests.
[44] A self-represented lay defendant lacks the knowledge of rules of procedure and evidence, and experience and skill in their application in the trial context. Litigants in person do not often give evidence or cross-examine in an orderly way that focuses on what is relevant and avoids repetition. Nor do they generally have the advantage of the detachment of counsel in conducting the defence. The right to self-representation exists despite these features, and they cannot be advanced to gainsay it. As Richardson P said in R v Power CA 187/96 22 October 1996:
A high threshold of fitness, including a best interests component, would derogate from the fundamental principle that accused persons are entitled to choose their own defences and to present them as they choose.
[45] The right to self-representation is upheld when the trial process allows accused persons a fair chance to present the defence case in their own way, with a Court respecting their strategic choices and avoiding misplaced solicitude over whether what is advanced to the jury is in the best interests of the accused.
[46] In the United States this emphasis on the importance of the accused person’s autonomy is tempered by a requirement that, in making the decision to dispense with the benefits associated with the right to counsel, an accused must “knowingly and intelligently forgo those relinquished benefits” (Faretta at 835). On the other hand in New Zealand this Court described a decision to dispense with counsel on appeal as being “a fully informed and deliberate one:” R v Miers (1994) 11 CRNZ 307 at 310 per Hardie Boys J. We prefer to express the test for dispensing with the services of trial counsel in those terms, leaving it to trial judges to determine the steps they should take and the information they will require to ensure it is met in the circumstances of individual cases.
[47] A question concerning the fitness of an accused person to stand trial may, however, arise on account of the person’s mental condition. At the time of the appellant’s trial, under s 108 in Part 7 of the Criminal Justice Act 1985 if, because of the extent to which he or she was “mentally disordered,” the accused was unable to plead, to understand the nature or purpose of the proceedings, or to communicate adequately with counsel for the purposes of conducting a defence, there was a procedure for the trial court to ascertain if the person was under disability. Normally the effect of such a finding was to excuse the accused from facing trial. The court was instead required to make an order for detention of the accused in a hospital as a special patient. In R v L [1998] 2 NZLR 141, 146 in a judgment delivered by Thomas J, this Court held that an accused with mental difficulties also enjoyed criminal process rights under s 25 so that such a person could not be made to stand trial if he or she could not obtain a fair trial, even if Part 7 of the 1985 Act did not apply. As the Court put it:
It is self-evident that a trial will not be fair if the accused suffers a disability which prevents him or her from effectively defending him or herself.
[48] In that case, the appellant, who had been charged with attempted arson and making threats to kill, suffered from long-standing psychological and personality difficulties, consistent with a diagnosis of being a pathological liar. The Court decided that her condition had not prevented the appellant from obtaining a fair trial. Despite the difficulties counsel would face in formulating and advancing a plausible defence, her disabilities did not impair the appellant’s ability to conduct the defence as she saw fit and to obtain a fair trial in doing so (at 145).
[49] Similar provisions to those in Part 7 of the Criminal Justice Act are now included in the Criminal Procedure (Mentally Impaired Persons) Act
)2003.[50] Where, as happened in this case, an accused person with mental difficulties, who is assessed as fit to stand trial, wishes to dispense with counsel’s services and to represent himself, the questions which arise concerning compliance with the accused’s rights under ss 24 and 25 of the Bill of Rights
andmust be addressed in a different mental context. The requirement that the accused is rationally able to understand the proceeding and functionally able to defend it during the trial process must be addressed on the basis of the accused’s capacity to do that adequately in person, rather than merely through communication of instructions to counsel. The accused must have the capacity, albeit at a basic level, to participate directly in the trial through questioning witnesses and communicating the defence to the court. This test, however, must be applied in a reasonable and common sense way. The corollary of a finding that an accused person is fit to plead but unfit due to psychological condition or any other reason to exercise the right to represent himself or herself personally at the trial, is that the statutory right to self-representation must be denied because the fundamental right to a fair trial will not be upheld if the accused is permitted to proceed to trial without counsel. In overseas jurisdictions this has resulted in the imposition on a defendant of counsel to conduct the defence. Before reaching that extreme position the trial court must look at available means of accommodating all rights. One way of doing so may be to follow the course of appointing as an amicus a counsel whose role is to be available at the trial to assist the accused. The effect of the appointment of Mr Shamy to such a role in this case is an important consideration in determining whether the appellant was tried without unfairness or injustice in this case.[51] The decision of an accused to conduct the defence personally can often have repercussions for the course of the trial. Situations can arise in which the trial Judge may be required to intervene in the trial to avoid its disruption and ensure overall fairness to each side. It may also be necessary to act in unorthodox ways to accommodate the legitimate interests of others participating in the trial process as well as those of the accused. In appropriate cases the interests of witnesses, including complainants, may be accommodated by departure from standard criminal procedures in a manner that is consistent with the right to a fair trial: Brown v Stott Procurator Fiscal (Dumferline) [2003] 1 AC 681, 708 per Lord Steyn.
[52] In Milton Brown [1998] 2 Cr App R 364, at 369-372 there is a valuable discussion by Lord Bingham CJ of legitimate approaches for trial judges to take in order to save complainant witnesses from avoidable distress in the course of questioning by self-represented accused. Lord Bingham first emphasises that the trial judge’s duty is to ensure to the utmost of his ability that the defendant “even if unrepresented, or perhaps particularly if unrepresented”, has a fair trial. He then discusses the interests of other participants and what it is permissible for a Judge to do to respect them. The extract from the judgment is lengthy, but as it bears on matters raised by the appellant concerning certain interventions by the trial judge in this case it should be set out in full:
The trial judge is, however, obliged to have regard not only to the need to ensure a fair trial for the defendant but also to the reasonable interests of other parties to the court process, in particular witnesses, and among witnesses particularly those who are obliged to relive by describing in the witness box an ordeal to which they say they have been subject. It is the clear duty of the trial judge to do everything he can, consistently with giving the defendant a fair trial, to minimise the trauma suffered by other participants. Furthermore, a trial is not fair if a defendant, by choosing to represent himself, gains the advantage he would not have had if represented of abusing the rules in relation to relevance and repetition which apply when witnesses are questioned.
Judges do not lack power to protect witnesses and control questioning. The trial judge is the master of proceedings in his court. He is not obliged to give an unrepresented defendant his head to ask whatever questions, at whatever length, the defendant wishes. In a case such as the present it will often be desirable, before any question is asked by the defendant of the complainant in cross-examination, for the trial judge to discuss the course of proceedings with the defendant in the absence of the jury. The judge can then elicit the general nature of the defence and identify the specific points in the complainant’s evidence with which the defendant takes issue, and any points he wishes to put to her. If the defendant proposes to call witnesses in his own defence, the substance of their evidence can be elicited so that the complainant’s observations on it may, so far as relevant, be invited. It will almost always be desirable in the first instance to allow a defendant to put questions to a complainant, but it should be made clear in advance that the defendant will be required, having put a point, to move on, and if he fails to do so the judge should intervene and secure compliance. If the defendant proves unable or unwilling to comply with the judge’s instructions the judge should, if necessary in order to save the complainant from avoidable distress, stop further questioning by the defendant or take over the questioning of the complainant himself. If the defendant seeks by his dress, bearing, manner or questions to dominate, intimidate or humiliate the complainant, or if it is reasonable apprehended that he will seek to do so, the judge should not hesitate to order the erection of a screen, in addition to controlling questioning in the way we have indicated.
The exercise of these powers will always call for the exercise of a very careful judgment, since the judge must not only ensure that the defendant has a fair trial but also (which is not necessarily the same thing) that the jury feel he has had a fair trial.
Appellant’s defence at trial
[53] Mr Lithgow did not argue that the appellant was unfit to stand trial and the disability regime in the 1985 Act should have applied in this case. The reports before Panckhurst J at the outset did not indicate that the appellant was under a statutory disability, and we would not draw that conclusion from the medical reports placed before us.We are satisfied that the appellant was able to plead, to understand the nature and purpose of the proceedings and that he would have been able to communicate adequately with counsel for the purpose of conducting his defence if he had not decided to represent himself. Nor did Mr Lithgow argue that the appellant was other than fully informed of the implications of his decision to represent himself or that it was not a deliberate one. We also are satisfied on that account although, in future cases, we consider it desirable for judges to record the information before them including any particular steps they have taken to ensure the accused has made an informed and deliberate decision.
[54] The important submission that Mr Lithgow did make is that the appellant’s mental, psychological, personality and intellectual problems together precluded the appellant from being able adequately to represent himself in person at the trial with the result that he was denied his right to a fair trial and we now address that question in accordance with the principles we have discussed.
[55] We start by considering what the record shows as to the manner in which the appellant conducted his defence at the trial. As already indicated, throughout the appellant had the benefit of assistance from the amicus who was one of his former counsel. The transcript indicates that the appellant regularly consulted Mr Shamy during the trial and he did so on several occasions in the course of his cross-examination of the complainant.
[56] The trial commenced on 6 November 2002. The complainant commenced giving evidence shortly after midday. Her evidence in chief was completed late that afternoon and the appellant then began to cross-examine her. He continued to do so for the whole of the second day and into the first session of the third day of the trial.
[57] The appellant put a number of matters to the complainant that were clearly pivotal to his defence. These included that she had initiated the relationship and that, although the appellant had asked her to leave on a number of occasions, she had invariably insisted on returning, partly because her relationship with her mother was such that she could not live with her. He also put to the appellant that on the occasion she had gone to the Women’s Refuge she did so solely to secure a benefit that would not otherwise have been available to her and not, as she had said, because she was in fear of the appellant. The complainant rejected all these propositions.
[58] The appellant also questioned the complainant concerning her evidence that he had restrained her, putting to her a number of questions concerning what he said were opportunities for the complainant to leave him during their visits to the local shopping mall, a hairdresser’s salon, and to third parties’ homes. The complainant’s response to this line of questioning was that he had exerted control over her and was in control of her mind. He had made her believe that no-one loved her, and that no‑one would come looking for her as they did not care about her. She said that his control over her mind was reinforced by his physical restraint of her in the flat involving chains, gagging her and tying her up with her scarf.
[59] At the time of her complaint to the police the complainant had marks on her body which she said were due to injuries that had been caused by the appellant’s various assaults. He questioned her about falling on a pale while out walking with him at Dean’s Bush, his suggestion being that certain injuries were due to his holding her or a fall while he was lifting her down from a boardwalk, or arose during other incidents not involving assaults by the appellant. The appellant also put questions about minor incidents, seemingly intended to demean the complainant or members of her family and cast doubt on her credibility. He put directly to the complainant that all their sexual activity had been consensual and that he had never abducted or assaulted her. She also denied all these propositions elaborating at times on what had happened to her.
Was there a fair trial?
[60] The record indicates that, with some exceptions, the appellant’s questioning of the complainant was coherent and followed a strategy.
[61] There were, however, numerous instances where the questioning was highly repetitive or drifted off into irrelevancies. There was a similar pattern, perhaps more pronounced, during his evidence in chief. This led to a number of interventions from the Judge which were designed to keep the trial on course.
[62] Putting what was said in The Press report to one side, and considering the transcript objectively, the effectiveness of the cross-examination was almost certainly affected by the apparent clarity, consistency and firmness of the complainant in her responses to the questions during the whole of the lengthy cross-examination.
[63] The appellant did build into his questioning, and his evidence in chief, his beliefs concerning background circumstances that the jury were highly likely to have regarded as delusions. These included his opinion that the complainant was striking blows to his head with a nunchaku while he was asleep, and that she had gang affiliations. When the appellant gave his evidence in chief he also said that the complainant had set him up in an organised way and that her gang associates would be looking for him. The evidence of such incidents would almost certainly have been treated by the jury as the product of delusions. That is particularly so of the allegation that the complainant was part of a gang conspiracy against him. This would certainly not have helped the appellant. His beliefs concerning the gang conspiracy would, however, almost certainly become known to the jury even if he had been represented by counsel. Furthermore, that aspect of the evidence was by no means contradictory of his defence.
[64] Overall it is our judgment that the appellant’s cross-examination, and his evidence in chief, did reflect an apparent defence theory which, if accepted by the jury, would have led to an acquittal on all charges. As Dr Brunet said in a passage already quoted from her report:
Mr Cumming was, at the time…reasonably aware of the points he needed to make in Court. He had a strategy in mind, and some sense of the important issues that needed to be brought forth.
[65] The Judge was able to put the defence case to the jury, on the basis of the appellant’s evidence and his cross-examination of Crown witnesses. It was that the complainant had prevailed on him to let her come to the flat when he had not wanted her to do so. She had not been unlawfully detained because she had consented to being chained up and gagged. Her contact with third parties made the complaint of detention ridiculous. There had been no sexual activity over the period covered by the charges, much less anything on the scale described by the complainant. The true explanation for her injuries was that they were caused during their walk at Dean’s Bush and as well, someone else had assaulted the complainant.
[66] It will be apparent that the trial judge made adjustments to normal trial process to accommodate the appellant’s right to represent himself. The most important of those was the appointment of the amicus. The appellant consulted the amicus regularly during the trial, including when he was cross-examining the complainant, a medical practitioner, a police communications officer, the police scene examiner and a hair stylist. He also consulted Mr Shamy prior to opening the defence case. We are conscious of the medical evidence concerning the intellectual capacity of the appellant but consider that the assistance given by the amicus, coupled with the many judicial interventions designed to keep the trial evidence on course, enabled the appellant to cross-examine the complainant in a way that raised with her the matters which he hoped would show she was not a credible witness and was lying about the assaults and sexual abuse she had suffered, perhaps to claim compensation, or as part of a conspiracy. It is undoubtedly the case that the amicus helped this unrepresented appellant to exercise his right to defend himself.
[67] The reality of this case is demonstrated by the defence the appellant did conduct at the trial. He did understand what he had to do and he put his defence in a way which left the jury able to make fair assessments of the complainant as a witness, and also of the appellant. The transcript shows that the appellant’s conduct of his defence had elements of confusion and other difficulties not unusual in litigants who represent themselves but no more than that. There was a fair presentation of his defence to the jury so that no considerations arise of the kind addressed by the Supreme Court in R v Sungsuwan [2005] NZSC 57 at [48], [58] and [65] to [68].
[68] The appellant wanted to defend the charges and to conduct the defence himself. We consider it highly improbable that medication would have altered his mindset in that respect given his paranoiac distrust of his lawyers. It was Dr Brunet’s opinion that “if he had been treated at the time he would have been able to recognise that he needed assistance and he probably would have been able to accept such assistance” but in light of what Dr Brinded said in his concluding comments rejecting the proposition that ADHD provided a credible explanation of the appellant’s trial conduct, we conclude that the medication would not have had the effect for which Dr Brunet contended. In any event we consider that the appellant was competent in the condition he was in to make the decision he did as to his representation. We also consider he exercised his right to defend himself in a manner which met the requirements of understanding and capacity that we have discussed in particular in para [50] of this judgment. The choice he made was probably not in his best interests but he was fit to make it and entitled to make it.
[69] For these reasons we do not consider that the appellant’s rights under the Bill of Rights were denied. His right to represent himself was also fully respected in the trial process. We reject that ground of appeal.
[70] The only steps taken by the Judge that might arguably have intruded on the fair trial right were confined to a series of interventions he made during the course of the trial.
[71] Mr Shamy and Ms Farrish, who had been the Crown prosecutor at the trial, reached agreement on a list of the Judge’s interventions during the questioning of witnesses by the appellant or when he was giving his evidence. The list included the remarks made by the Judge and when they were made in most cases by reference to the trial transcript. We found their memorandum helpful. Mr Lithgow was critical of certain interventions by the Judge which he said demonstrated frustration with the appellant, to the extent that it became “a major dynamic of the trial.” The interventions were first a direction to the appellant on the second day to “put it to him,” meaning that a document should be put to a different witness than the one then being cross-examined. Secondly, on the fourth day of the trial, the Judge is recorded as having said to the accused: “Are you stupid!” The context was either the speed of his questioning or the content of particular questions (counsel were unable to agree on this). Later the same day the Judge is quoted as having shouted at the appellant: “No you cannot and would you get on with it.” We were not told the context but it was during the defence case. The Judge may have also raised his voice in the course of one or two other interventions. It is sufficient for us to say concerning this submission that we do not accept that the limited number of incidents concerned had the effect on the trial for which the appellant contends.
[72] Mr Lithgow was generally critical of the extent to which the Judge kept firm control over the trial and the appellant’s participation in it. The Judge directed the appellant to stand when normal protocol required, kept him to the point when he believed the appellant was rambling, told him to be quiet if he was interrupting the complainant’s answers and generally required him to keep his questioning relevant and to follow rules of evidence. Having regard to points made in the extract we have cited from Lord Bingham’s judgment in Milton Brown we see nothing untoward in the scale and content of these interventions. We would add that we consider that the Judge allowed very considerable latitude to the appellant in this difficult trial. The scale of his interventions was very moderate and their effect was to keep the appellant on course in his conduct of the defence, to respect the rights of other participants to ensure that the rights of the appellant were upheld and that he received a fair trial. We reject this further ground of appeal.
Crown’s final address
[73] Mr Lithgow argued that the Crown should not have closed its case with an address to the jury when the accused was a litigant in person. This submission is answered by the terms of s 367 of the Crimes Act 1961 which relevantly provides:
367Evidence and addresses
…
(2)When all the evidence (including any evidence given on cross-examination, re-examination, or in rebuttal) is concluded, counsel for the prosecution may make a closing address to the jury.
[74] We accept that when an accused is unrepresented the Crown has a duty to conduct the prosecution with care, and in particular that prosecutors must ensure no unfair prejudice arises to the unrepresented defendant. But the legislation is clear and if the Crown elects to make a final address that cannot of itself amount to an abuse of the prosecutorial function.
Summing up
[75] Mr Lithgow also took issue with an aspect of the Judge’s direction on the standard of proof. The Judge had said:
The standard of proof is a high one. The Crown must prove each ingredient of and ultimately the charges themselves beyond reasonable doubt. To be satisfied beyond reasonable doubt means that you must individually and collectively feel sure of guilt in relation to each individual charge as you consider it. Just to repeat that, you must individually and collectively feel sure, that is the test. So obviously “possibly” is not good enough. Even “probably” is not good enough. You must feel sure. That is the best way I can explain it. If at the end of your consideration of any charge you hold a doubt, a doubt that is based on reason, not some fanciful, far-fetched view, then the Crown has proved that particular charge and your duty, unpleasant as it may be, would be to find Mr Cumming guilty. If on the other hand at the end of your consideration of any one charge you are left with a doubt that is reasonable in all the circumstances, then the charge would not be proved and your duty would be to acquit him.
The critical passage comprises the last two sentences of the direction. For the first of these sentences to make sense the Judge should have said “you do not hold a doubt” but we consider that in the context the omission would not have misled the jury.
[76] Mr Lithgow said that the phrase “a doubt based on reason” was inappropriate when addressing on the standard of proof but these words must also be read in their context and when that is done we do not consider that the effect of them on the jury would have been that they excluded an inappropriate level of doubt. We are satisfied there is nothing in this ground.
[77] In relation to the accused’s evidence Mr Lithgow said it was wrong for the Judge to say:
If you accept Mr Cumming’s evidence as gospel then plainly he would be acquitted. There were no acts of intercourse, there were no assaults and on his version of events there was no detention of (the complainant). Game set and match, eight acquittals…
[78] The direction did not follow the logical form of that set out in R v McI [1998] 1 NZLR 696, at 708, but we are satisfied in this case, reading the summing up as a whole, the jury was sufficiently advised on the correct approach and were aware that if they had a reasonable doubt concerning whether or not to accept the accused’s account they should acquit the appellant.
[79] Similarly we see no unwarranted imbalance in the way that the Judge put the Crown and defence cases to the jury. We do not think that it was incumbent on the Judge to direct the jury not to take account of the way the appellant acted in the course of his trial or assessing his credibility or that the way he directed on these matters was unfair.
Sentence appeal
[80] The Judge sentenced the appellant to preventive detention with a minimum non parole period of seven and a half years, that element reflecting the gravity of his crimes. In relation to the protection of the community, which he was also required to consider under s 89 of the Sentencing Act, the Judge said:
I feel quite unable to determine what period you should be detained for in order to achieve the protection of the community. That is entirely in your hands. If you accept treatment you may be able to be released. If you do not you will have to be detained indefinitely.
[81] Mr Lithgow accepted that the technical requirements for imposition of the sentence of preventive detention to be imposed were met. The focus of his submission was that it was unfair for the Judge to take into account the appellant’s conduct during the trial in determining the sentence.
[82] The concern of counsel appears to focus on this passage in the Judge’s sentencing remarks:
She was kept captive not only by physical means but also by psychological manipulation. At one point in your cross-examination of her the complainant gave this answer which to me was particularly haunting. She was asked “And you are saying you were kidnapped, beaten and raped” and she replied “You were in control of my mind. You made me believe that no-one loved me, that no-one would come looking for me as they didn’t care. If I told anyone no-one would believe me anyway.” By these methods, physically and mentally you effectively controlled her being throughout that ten day period.
[83] We see no basis in this passage or anything else in what the Judge said for concluding that the way the appellant conducted his defence has been held against him. The Judge’s discussion is directed entirely to the circumstances of the offending and the offender. A reading of the whole of what the Judge said indicates he was not unsympathetic to the appellant. He acknowledged that this was the first occasion on which the appellant had been convicted of really serious offending but the seriousness of the harm he had caused his victim and the risk he posed to society required that the sentence of preventive detention be imposed.
[84] The appeal against sentence also fails.
Conclusion
[85] For these reasons the appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington
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