Cumming v. The Queen

In 2002, the High Court convicted C on eight counts of sexual assault, including rape, unlawful sexual connection, and other offences against the person including detaining with intent to have sexual intercourse. C was subsequently sentenced to preventive detention. C conducted his own defense during the trial. The jury addressed its concerns about the manner in which C conducted his defense to the judge prior to the judge’s summation, asking the judge whether the trial was conducted fairly considering the seriousness of the offense. The judge responded by indicating that the trial was fair, as not only did C have the right to defend himself, he had also been represented by legal aid lawyers on previous occasions, and that the Court had appointed an amicus curiae to assist in the current proceedings. However, concern was expressed by the amicus curiae with regard to C’s serious limitation in his ability to conduct his own defense. C appealed to the Court of Appeal on the issue that his convictions ought to have been quashed on the ground that a miscarriage of justice had occurred due to his mental condition. His appeal was dismissed, and he appealed to the Supreme Court.

The question facing the Supreme Court was whether C had suffered a miscarriage of justice as defined by section 385(1)[1] of the Crimes Act 1961 by reason of his mental disorder at the time of the trial. If a miscarriage of justice was found, the Court was then to consider whether C’s case should be retried. C’s counsel argued that there should be no retrial as C had already been in custody for six and a half years. The Court examined the legislation which dealt with the trial of mentally impaired persons in order to decide which criteria the Court should examine when determining whether a miscarriage of justice has occurred. In particular, the Court looked at the question of whether C was “unfit to stand trial” as defined in section 4, Part 2, subpart 1 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“Act”) and looked at similar statutory provisions relating to the trial of mentally impaired persons contained in Part 7 of the Criminal Justice Act 1985, which was in force at the time of C’s arrest and trial but had subsequently been repealed by the Act. It was noted that, under section 7(1)[3] of the Act, the Court was not permitted to make a formal finding of unfitness to plead or to stand trial but was able to inquire into whether C’s mental disorder during his trial made him unfit to plead or stand trial, and therefore constituted a miscarriage of justice.

The Supreme Court considered various psychological and psychiatric reports about C which were completed during and following his trial. During C’s trial, it was reported to the District Court that C was suffering from Antisocial Personality Disorder, which led to the suggestion that his intelligence was lower than average, but that he was not suffering from a disability and did not have any psychiatric defense to the charges. However, subsequent health assessments carried out pursuant to s 88(1)(b) of the Sentencing Act, following the conviction of C in the High Court, found C to have clear indications of a mental disorder, which had grown during the course of the trial. The report made clear that, as a result of C’s mental condition, he was incapable of representing himself at trial. The report concluded that C was suffering from a Delusional Disorder, which meant that he was “mentally disordered to the extent that he was unable to plead and to communicate adequately with his counsel when conducting a defence.” Furthermore, the psychiatric report noted that, as C was without counsel, the impact of his mental disorder was even greater upon his functioning in court; both C and his counsel (himself) were mentally disordered.

[Adapted from INTERIGHTS summary, with permission]

In ordering a new trial, the Court held that:

(1) It is not right to put someone on trial who had a mental disorder that would clearly make the trial unfair, as recognized by Parliament through the implementation of various statutory regimes. C clearly suffered from a disability under Part 7 of the Criminal Justice Act 1985 and, under s 4, Part 2, subpart 1 of the Act (the present legislation) C was clearly unfit to stand trial. Consequently, it can be identified that there has been a significant miscarriage of justice in accordance with s 385(1) of the Crimes Act 1961.

(2) The legislative schemes in relation to the relevance of mental disorders to the question of trial indicate criteria to which the Court should have regard when examining whether lack of regard for the mental condition of a defendant during trial can constitute a miscarriage of justice.

(3) Between the commencement of criminal proceedings and the conclusion of all evidence at trial, if there is sufficient evidence against a defendant to establish that the defendant caused the act for which he has been charged, the statutory procedure used to identify a defendant who is unfit to stand trial under Part 2, subpart 1 of the Act must be adhered to carefully and stringently under a prescriptive regime of inquiry, in order to identify whether a defendant is mentally impaired, and therefore unable to stand for trial.

(4) A retrial should be held in this case, as contrary to the views of C’s counsel, in the event that C is reconvicted, he would be liable to an indeterminate sentence of preventive detention. Through a retrial, the correct and necessary statutory regime, as set out in paragraph (3) above, would be implemented, which should result in a fair judgment on behalf of C.

[Adapted from INTERIGHTS summary, with permission]

"It is very clear to us that by reason of mental disorder Mr Cumming was under a disability or, in terms of the present legislation, unfit to stand trial. For that reason there has been a substantial miscarriage of justice. The appeal must therefore be allowed." Para. 21.