Lichtwark v Police - [2025] NZHC 446

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WAIHARAKEKE ROHE

CRI-2024-406-13

[2025] NZHC 446

BETWEEN
STEVEN MICHAEL LICHTWARK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 18 February 2025

Appearances:

J W N Cameron for Respondent

Judgment:

10 March 2025

JUDGMENT OF BOLDT J

Introduction

[1] The appellant, Mr Lichtwark, was convicted after a Judge-alone trial on a charge of refusing to give a blood specimen when lawfully required to do so.1 He appeals against his conviction.

Background

[2] The summary of facts alleged that on 8 April 2024 Mr Lichtwark went to a medical centre in Kaikoura after being injured in a fight. The summary alleged he was intoxicated, and that Police found him in his vehicle consuming an alcoholic drink. It

1Land Transport Act 1998, s 60(1)(a). Maximum penalty 3 months’ imprisonment or fine not exceeding $4,500.

LICHTWARK v NEW ZEALAND POLICE [2025] NZHC 446 [10 March 2025]

recorded that the medical centre refused to treat Mr Lichtwark because of his behaviour.

[3] Mr Lichtwark was arrested for breaching a bail condition requiring him to abstain from alcohol. At the station, the Police required Mr Lichtwark to undertake a breath screening test, but he refused. The summary alleged he also refused to undertake an evidential breath test and to provide a blood specimen.

District Court trial

[4] Mr Lichtwark stood trial in the Kaikoura District Court on 3 October 2024. When the case was called Mr Lichtwark applied for an adjournment. He told the Judge he had Covid-19 and was unwell. The only account of the adjournment application was a statement prepared by the Police prosecutor, who recorded that Mr Lichtwark told the Judge he had not taken a Covid test. The presiding judge, Judge M Callaghan, issued an oral ruling declining Mr Lichtwark’s application.

[5] The trial then proceeded. Mr Lichtwark appeared on his own behalf and cross-examined the sole Police witness, Constable Heger. In material filed in this Court, Mr Lichtwark says he was “extremely ill” at trial and that on one occasion he had to urge the Judge to grant an adjournment so he could be sick.

[6] Mr Lichtwark gave evidence. It appears he alleged he had begun consuming alcohol after he arrived at the medical centre. As is discussed in more detail below, it is unclear what other evidence he gave, and which aspects of the prosecution case he contested. At the conclusion of the trial, the Judge found the charge proved.

The appeal

[7] In his appeal notice, Mr Lichtwark indicated he wishes to challenge his conviction on the ground he was unfit to defend himself properly during the trial. He said he was “throwing up and stated [he] was unfit at the time”. In an email which comprised his submissions on appeal, Mr Lichtwark said he did not consider he

defended himself well because he was ill, and that there were matters he intended to convey to the Judge but did not because he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lichtwark v Police

Details

AGLC: Lichtwark v Police [2025] NZHC 446
Case: [2025] NZHC 446
Decision Date: 10 March 2025

CaseChat Overview and Summary

The appellant, Mr Lichtwark, appeals his conviction for refusing to give a blood specimen when lawfully required, as charged under the Land Transport Act 1998. The appeal was heard by Boldt J in the High Court of New Zealand Blenheim Registry. The central issue before the court was whether Mr Lichtwark was fit to defend himself during his trial in the Kaikoura District Court, and if not, whether this lack of fitness led to a miscarriage of justice. Mr Lichtwark argues that he was too ill to adequately defend himself during the trial, which was a factor that was not properly considered by the District Court.

The court needed to determine if the absence of a recorded or transcribed trial transcript, due to a technical failure at the District Court, sufficiently impeded the appellate court's ability to review the merits of the appeal. This technical failure meant that there was no record of the Judge's reasons for rejecting Mr Lichtwark's evidence or finding him guilty. The court referenced previous cases such as Sena v Police and Aghabiggi v Police, which emphasized the importance of a reasoned judgment in criminal proceedings and the necessity of a transcript for an effective appeal.

Boldt J concluded that the absence of a trial record fundamentally hindered the ability to properly consider the appeal. Although the grounds of appeal were not compelling on their face, the inability to review the trial proceedings due to the lack of a transcript deprived the High Court of the ability to scrutinise the evidence and the Judge's decision. Consequently, the court found that a miscarriage of justice had occurred, and Mr Lichtwark's appeal must be allowed. The conviction is set aside, and a new trial is directed.

Orders