R v Lesage [2017] NZDC 20073 (7 September 2017)

Last Updated: 27 February 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRES(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF APPELLANT(S)/RESPONDENT(S)/ACCUSED/DEFENDANT(S) PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE DISTRICT COURT AT WELLINGTON

CRI-2016-091-000424 [2017] NZDC 20073

THE QUEEN

v

_{[KEITH LESAGE]}

Date of Ruling:	7 September 2017
Appearances:	E Light with C Hislop for the Crown C Stevenson for the Defendant
Judgment:	7 September 2017

_{RULING 2 OF JUDGE A I M TOMPKINS}

[1] At the commencement of what is likely to be the final day in this trial,

Mr Stevenson, appearing for the defendant, has raised an issue concerning the disposition of persons within the courtroom, and specifically the presence at a table to the side of the courtroom on the opposite side from the jury, and slightly in front of the dock, of the officer in charge.

[2] Mr Stevenson submits that in the interests of overall fairness, and the officer in charge’s formal role in the trial now having ceased, the officer in charge should not remain seated at the table in case the jury are left with the impression, perhaps

_{intangible but, nevertheless, potentially real, that the officer in charge in particular,}

R v [KEITH LESAGE] [2017] NZDC 20073 [7 September 2017]

and the police in general, retain a role in the trial process elevated above that of any other witness who has completed their evidence but who is entitled to remain in the public gallery in the Court.

[3] Ms Light, appearing for the Crown, accepts that in the end, it is a matter of overall trial fairness but submits that given the custom in the Wellington region for this particular aspect of Court layout and seating arrangements to be observed, and that a move of the officer in charge at this stage in the trial might trigger some speculation in the jury as to why that occurred, submits, first, that the officer in charge should be entitled to remain seated where he has been throughout the trial and, secondly, that if the officer in charge is required to relocate to the public gallery, that the jury simply be told that because the officer in charge’s formal role as a witness has ended, he has moved to the public gallery, that being a suggestion with which

Mr Stevenson agrees.

[4] This is a matter that I have not encountered before. Indeed, it is, in my personal experience, apparent that throughout the country, different seating arrangements and configurations are adopted, not only for the officer in charge but also, indeed, for the defendant, who in some courtrooms remains in the dock throughout the trial, as is the case in Wellington, but in other courtrooms in other centres, following arraignment, moves to a table in the body of the Court, normally immediately behind defence counsel.

[5] Mr Stevenson advises that although this issue is a matter of discussion and debate within the defence bar, as far as he and, I assume, Ms Light is concerned, there is no available ruling to serve as a precedent to guide the Court as to the appropriateness or otherwise of various available and alternative seating configurations in the courtroom.

[6] In the end, it must come down in those circumstances to overall fairness, being both fairness to the defendant but also, as Judges routinely tell juries, fairness to the community, represented here by the Crown.

[7] In those circumstances, I am minded to accede to Mr Stevenson’s request, given that in the absence of any statutory guide or, indeed, any precedent or prior relevant ruling, and if the matter is finely balanced and one of intangible and potential impression only then in the end, the Court should err on the side of ensuring that the defendant receives a fair trial.

[8] In those circumstances, I will request, when the jury returns to hear closing addresses today, that the officer in charge move to the public gallery. And I will, as endorsed by both counsel, mention that in passing to the jury.

A I M Tompkins

District Court Judge