The King v Lachlan Alexander Johnson

[2022] NZHC 2347

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2020-043-1356

[2022] NZHC 2347

THE KING

v

LACHLAN ALEXANDER JOHNSON

Hearing:	On the papers dated 5 September 2022
Appearances:	J M Marinovich and L A Blencowe for Crown P M Keegan and N Bourke for Defendant
Judgment:	13 September 2022

JUDGMENT OF CULL J

[1]    Mr Johnson was convicted by a jury of manslaughter and is scheduled for sentencing on 4 October 2022. He applies to appear for sentencing via audio-visual link (AVL) from Whanganui Prison instead of attending at the New Plymouth High Court. He says that it is in the interests of justice that he be permitted to attend via AVL because of his chronic pain from multiple body and back injuries.

[2]    The Crown abides by the Court’s decision although the preference is that the defendant is sentenced in open Court in the presence of the victims of the offending.

[3]    The Courts (Remote Participation) Act 2010 (the Act) enables hearings to be conducted by way of AVL. Section 8 enables AVL to be used for appearance of a participant in a sentencing matter if AVL is available, the participant is in custody, and

R v JOHNSON [2022] NZHC 2347 [13 September 2022]

the Judge determines that the use of AVL is not contrary to the interests of justice.1 Before making a determination however, the Judge must take into account the criteria specified in ss 5 and 6 of the Act.

[4]Sections 5 and 6 relevantly provide:

1. General criteria for allowing use of audio-visual links

   A judicial officer or Registrar must consider the following criteria when he or she is making a determination under the Act whether or not to allow the use of AVL for the appearance of any participant in a proceeding:

   (a)the nature of the proceeding:

   (b)the availability and quality of the technology that is to be used:

   (c)the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding, including—

   (i)the ability to assess the credibility of witnesses and the reliability of evidence presented to the court; and

1. the level of contact with other participants:

   (d)any other relevant matters.

6      Additional criteria for allowing use of audio-visual links in criminal proceedings

A judicial officer or Registrar must also consider, when he or she is required to determine under this Act whether or not to allow the use of AVL for the appearance of any participant in a criminal proceeding, the potential impact of the use of the technology on the effective maintenance of the right of the defendant to a fair trial, and on his or her rights associated with the hearing, and, in particular,—

(a)the ability of the defendant—

(i)to comprehend the proceedings; and

(ii)to participate effectively in the conduct of his or her defence; and

(iii)to consult and instruct counsel privately; and

(iv)to access relevant evidence; and

(v)to examine the witnesses for the prosecution; and

(b)the level of contact the defendant has with other participants; and

(c)any adverse impression that may arise through the defendant or any other participant appearing by means of AVL, and whether that adverse impression may be mitigated.

[5]    The relevant criteria in respect of Mr Johnson’s sentencing are whether there is any adverse impression that may arise from his appearing by means of AVL from a victim’s perspective and whether it is in the interests of justice to permit him to do so nevertheless.

1      Courts (Remote Participation) Act 2010, s 8(2).

Mr Johnson’s circumstances

[6]    Mr Johnson has chronic and severe back injuries as well as injuries to other parts of his body. Mr Herman, an orthopaedic surgeon from Whanganui DHB, provided a clinical letter confirming the multiple injuries to multiple parts of Mr Johnson’s body, including the results from a previous surgery involving the removal of metalware in his back from a fusion operation.

[7]    During the trial, Mr Johnson was in constant pain and the Court went to some length to provide him with a standing desk, to alleviate his discomfort during the trial. During the trial, the effects of transport between Whanganui Prison and the New Plymouth Remand Hub exacerbated Mr Johnson’s pain levels, necessitating the Court adjourning early on the first day of the second trial because of his inability to withstand a full day’s attendance at trial.

Decision

[8]    Mr Johnson is represented by Counsel and is to appear for sentencing. There is no question that there is any impediment to the ability of the defendant participating effectively in the proceeding, or to consult or instruct Counsel privately, and nor is there any issue about witness participation by way of AVL. The principal issue before the Court is whether any adverse impression arises by the defendant being sentenced remotely on a serious charge of manslaughter and the inability of the victim to confront him.

[9]    Mr Johnson has appeared in person for two full jury trials. The first trial resulted in a hung jury. The principal victim gave evidence against Mr Johnson in both trials and will be able to read a victim impact statement at sentencing, even if Mr Johnson attends remotely. In addition, Mr Johnson’s name, the details of his trial and offending have been routinely reported in the media, with published photographs of Mr Johnson. The sentencing does not give rise to substantive matters which cannot be heard by AVL.2

2      See R v Williams [2019] NZHC 2630.

[10]    Having presided over Mr Johnson’s two trials in New Plymouth, I consider it is in the interests of justice to permit his appearance for sentencing by AVL, given his chronic pain from injury. The effects of his travelling led to trial disruption on the first day of the second trial and the exacerbation of Mr Johnson’s condition and discomfort by travelling to New Plymouth for sentencing in these circumstances outweighs any adverse impression being drawn from his remote participation.

Result

[11]   The application for Mr Johnson to attend his sentencing remotely by AVL is granted.

Cull J

Solicitors:

Bourke Law, New Plymouth, for Defendant Crown Solicitor, New Plymouth for Crown