On being unable to communicate with one’s self

Perceptions of trial fairness may depend on what is known about the accused’s mental condition. An appellate court that does not know that the accused was suffering, while on trial, from a mental disorder that made him incapable of adequately communicating with his counsel, may assess the record of the trial and conclude that the trial was fair. Another appellate court, armed with fuller information about the accused’s mental condition, may assess the same trial as having been unfair. Such unfairness would arise, not from the course of the trial, but from the unfairness of making a person under mental disability stand trial.

This occurred in Cumming v R [2008] NZSC 39 (15 May 2008). The Supreme Court concluded (para 21):

“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.”

The Court did not refer to, and in particular did not criticise, the Court of Appeal’s assessment of the trial as being fair: [2005] NZCA 260. That Court had summarised its view of the trial as (para 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 Sungsuwan v R [2005] NZSC 57 at [48], [58] and [65] to [68].”

The accused had represented himself at trial, having dispensed with the services of a series of counsel. A psychiatric report, available to the Supreme Court but not to the courts below, concluded that

“As Mr Cumming was acting as his own counsel the impact of his mental disorder was even greater upon his functioning in court. Conducting a delusionally based defence and with obvious impairments in his ability to process information, make appropriate inquiries and respond to what was happening, Mr Cumming, as his own counsel, could be said to be unable to communicate adequately with himself. Essentially both defendant and counsel were mentally disordered in this situation.”

This case highlights the need for accurate psychiatric diagnoses at an early stage, and the need for review of those as a trial proceeds. The difficulty is that a person who is advancing, albeit in a confused and irritating way, a coherent defence, may easily be misdiagnosed as being fit to stand trial. A coherent defence may nevertheless be the product of delusion and mental disorder. This case establishes that a person on trial has the right to present a defence that is not the result of mental disorder, regardless of how rational it may appear to be.

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