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 was sick.

[8]    Mr Lichtwark’s grounds of appeal are not, on their face, especially compelling; Mr Cameron, on behalf of the Police, submitted Mr Lichtwark defended himself in a perfectly able manner and did not appear adversely affected by illness. It is far from uncommon for defendants to be disappointed with their own performance when appearing in person; it is almost always a bad idea for criminal defendants to conduct their own defence.

[9]    In the absence of a medical certificate (or even independent confirmation, in the form of a test, that Mr Lichtwark did indeed have Covid), the Judge would have been entitled to decline the adjournment application. Similarly, in the absence of evidence showing Mr Lichtwark was so incapacitated by illness that he was unable to present a meaningful defence, the fact he was unwell would not by itself lead an appellate court to conclude a miscarriage of justice had arisen.

[10]   Mr Cameron acknowledged there was an episode where Mr Lichtwark was heard making loud vomiting noises in the bathroom, but that appeared to be the only manifestation of any illness the prosecutor observed.

The problem

[11]   The problem in considering Mr Lichtwark’s appeal, which has ultimately proved fatal to his conviction, is that there was a technical failure in the Kaikoura District Court on the day Mr Lichtwark was tried. As a result, none of the hearing was recorded or transcribed. The District Court has been unable to provide any record of the Judge’s adjournment ruling, the notes of evidence are missing, and there is no record of the reasons the Judge rejected Mr Lichtwark’s evidence or why he found the charge proved.

[12]   That failure is not the fault of the prosecution or the Judge. Nonetheless, the absence of the Judge’s decision or any record of what occurred at the hearing poses a fundamental difficulty on appeal. For example, in Sena v Police the Supreme Court

referred to the duty of judges to provide reasons for their decision when convicting a defendant. The Court observed:2

[36]      …the language of s 232(2)(b) [of the Criminal Procedure Act 2011] reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial. A failure to provide a reasoned resolution of a significant evidential dispute may, alternatively, suggest a misapprehension of the effect of the evidence, for instance a misapprehension of the significance of the dispute.

[37]      …What is required are reasons which address the substance of the case advanced by the losing party.

[13]   While I have no doubt Judge Callaghan provided reasons explaining his decision to find Mr Lichtwark guilty, it is now impossible to scrutinise them, or to understand the basis of his decision. Although that failure is no-one’s fault, I cannot simply assume the notes of evidence would confirm Mr Lichtwark conducted his defence without apparent difficulty,  or that the Judge had a clear basis to reject     Mr Lichtwark’s evidence and find the charge proved. On their face the grounds of appeal are weak, but Mr Lichtwark is still entitled to ask the Court to rule on them.

[14]   In Aghabiggi v Police, the appellant had been convicted of indecent assault.3 He challenged his conviction on grounds which included the fact the court was unable to produce a full transcript of the District Court hearing. One of the microphones had not been turned on, making much of the evidence inaudible. Justice John Hansen noted that at times he was required to guess what words were spoken and what they meant.4 He observed that an appeal is a rehearing where the appellate court, in the first instance, is obliged to consider the evidence tendered at trial.5 He continued:

[10]      …Clearly in my view this Court is not in as good a position as the Court below in assessing the evidence. It is not enough in a criminal case, with the heavy burden on the prosecution, to simply say the matter turned on credibility and the Judge was in a position to assess that. The state of the transcript, which I stress is not the fault of the prosecution, but completely the fault of employees of the Department for Courts, is such that I cannot be certain as to what answers were given. … As Cartwright J noted in Lau v Ogle

2      Sena v Police [2019] NZSC 55 [2019] 1 NZLR 575.

3      Aghabiggi v Police HC Christchurch, A13/03, 3 April 2003.

4 At [7].

5 At [9].

in most instances where notes taken in the District Court are not available there will [be] no option but to remit the case to that Court for rehearing.6 Without the notes this Court would be unable to hear and determine the appeal. That seems to me to be even stronger in criminal cases where the standard of proof is so much higher.

[11]      While I appreciate the position of the prosecution, and indeed of the Complainant, I am afraid that the state of the transcript is such that this Court cannot properly consider this appeal against conviction on the notes of evidence and it must be allowed and a rehearing ordered.

[15]   The same point applies, with even more force, in the present case. The Court does not have access to even a partial transcript. The New Zealand Bill of Rights Act 1990 guarantees Mr Lichtwark the right to appeal against his conviction and sentence.7 Here the absence of the trial record has deprived this Court of the ability to review any aspect of the District Court proceeding.

[16]   At the hearing of the appeal, Mr Cameron understandably asked for a further opportunity to review the authorities, and to make additional submissions about whether a meaningful appeal could still be conducted. He has now confirmed, by memorandum, that without a formal record of the hearing the Police are not in a position to contest the appeal, or to argue the conviction should stand.

[17]It follows a miscarriage of justice has arisen, and the appeal must be allowed.

Result

[18]   Mr Lichtwark’s appeal against conviction is allowed. His conviction is set aside, and I direct a new trial.

Boldt J

Solicitors:

O’Donoghue Webber, Crown Solicitor, Nelson for Respondent

6      Lau v Ogle (1998) 12 PRNZ 547.

7      New Zealand Bill of Rights Act 1990, s 25(h).