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A man charged with aggravated burglary has walked free partway through a trial, while the victim, who was allegedly hit in the head with a hammer during the burglary, was sent to jail for calling a lawyer a “f***wit”.
Things got heated at a trial in the Christchurch District Courtwhen burglary victim Hamish Lucas* began swearing while being questioned. They got even hotter during cross-examination when he was asked about the defendant, Marcus Bourne*, having slept with Lucas’ girlfriend.
The self-employed father-of-three responded by picking up a water jug and throwing water on Bourne before being forcibly removed back to the dock.
“Usually, [that’s] the area that the defendant resides, not the complainant,” Judge Tom Gilbert said in a recently released decision describing how Lucas ended up being sent to prison for eight days for “serious” contempt of court.
Judge Gilbert said he had never seen anything like what happened in his 25 years in criminal courts and in his seven years as a judge, while defence lawyer Allister Davis told NZME being called a f***wit was “just the job”.
“He [Lucas] was getting a bit smart, and I had to ask him certain questions about his girlfriend playing ‘hide the sausage’ with my client.
“That’s when he really lost his rag,” Davis said.
Judge Tom Gilbert. Photo / District Courts NZ
The drama played out while Bourne was on trial earlier this year facing a charge of aggravated burglary in August 2021. An initial trial was earlier abandoned when Lucas failed to show up.
It was alleged Bourne and another unknown person went to Lucas’ house, apparently over a low-level drug exchange that went wrong.
When Bourne and his associate arrived at Lucas’ house, there was talk about taking one of his vehicles. Lucas told them that would not be happening, and he was struck in the head with a hammer, allegedly by Bourne, while the other person smashed a window with the piece of wood.
Bourne denied he was involved and said he’d been at home with his parents on the night in question.
Judge Gilbert said in his recent decision that Lucas was using “unfortunate language” while giving evidence, but, given the stress of the situation, he was not overly concerned.
Lucas was asked to calm down and give evidence without resorting to swearing.
His volatility “ramped up” after the prosecution finished and Davis started questioning Lucas.
Judge Gilbert activated the duress alarm to speed up his request for security officers in court.
“That message was taking a wee while to be actioned, and I became sufficiently concerned that I activated the duress alarm to speed that along.”
Lucas’ demeanour then “went up a gear” when the question about his girlfriend was raised. He was asked again to settle down, and when asked once more, he “arced up”.
Lucas got up, left the witness box and advanced five or six metres towards where Bourne was seated in an aggressive and abusive fashion, threatening him.
Court security and Corrections officers intervened in what appeared to be an imminent assault, but Lucas picked up the water jug and emptied it on Bourne.
The jury retreated and Lucas was taken into custody while Judge Gilbert decided what to do with the charge and, secondly, what to do with Lucas.
While in the cells, Lucas apologised for his outburst but indicated it was unlikely he would be able to control his anger if the trial continued.
Judge Gilbert exercised the jurisdiction available to him to dismiss the charge against Bourne. He said his decision was based on it being the second attempt at a trial but, more relevantly, because he thought there was little if any chance of the matter being able to get through to verdict because of Lucas’ volatility.
“In a system that is so overstretched already, I am not prepared to allow this matter to continue.”
In deciding an outcome at the subsequent contempt hearing for Lucas, Judge Gilbert set a starting point at five weeks in prison, reduced in recognition of Lucas’ apology, his genuine regret and the fact his outburst had led to the defendant walking free.
Judge Gilbert said the decision wasn’t made lightly, but Lucas’ conduct had to be marked in a way that reflected the gravity of the situation.
* The men’s names were changed by the courts in the publicly released decision.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.
