A rapist who outraged victims' rights advocates with his day- long cross-examination of his victim could get a new trial.
Jason John Cumming, of Christchurch, had his case heard in the Supreme Court yesterday. His lawyer argued that there had been a miscarriage of justice because Cumming defended himself at his trial.
During his High Court trial in November 2002, he spent hours questioning his accuser, who collapsed at the end and needed medical treatment.
The woman, aged 16 at the time she was abducted in October 2001, said Cumming had forced her to stay naked at his Riccarton flat, repeatedly violated her, chained her, beat her, and burned her with a cigarette. She escaped while they were out driving.
Cumming had a court- appointed lawyer but acted for himself. At the trial, some jurors questioned the fairness of the hearing.
"At least some of us are seriously troubled to be asked to make decisions from such a lopsided presentation, especially given the high stakes," the jurors said.
Cumming was found guilty of rape, sexual violation, abduction for sex, assault with a weapon and two charges of assaulting a female. He was given preventive detention and a minimum non- parole period of 7 1/2 years.
Yesterday his lawyer, Robert Lithgow, said the convictions should be quashed and the case sent back to the High Court for a retrial. The case could then be stayed or Cumming could be found to be under a disability.
The fact that there was medical opinion now indicating that Cumming was under a disability at the time of the trial was relevant to there being a miscarriage of justice, Mr Lithgow said.
Cumming had paranoid delusions, an intellectual disability, attention deficit disorder and was not on medication during the trial.
Justice Andrew Tipping said the law had changed since the trial and Cumming no longer had the right to cross-examine his accuser. A lawyer would have to be appointed, if only to do that.
Mr Lithgow said that solved the problem of the indignity and confrontation the victim had suffered.
As the trial progressed, it was not fair, or did not have the appearance of being fair, Mr Lithgow said. Psychiatric evidence was that Cumming was almost certainly unfit to plead, so was under a disability.
Crown lawyer John Pike said the Court of Appeal decision to dismiss Cumming's appeal was carefully considered.
Cumming had used a "rational strategy of sorts", and managed to get across the salient issues at trial. He did not lack understanding, Mr Pike said.
The court has reserved its decision.
- The Dominion Post