Lichtwark v The Queen - [2014] NZCA 112

IN THE COURT OF APPEAL OF NEW ZEALAND

CA663/2013
[2014] NZCA 112

BETWEEN	DARYL MICHAEL LICHTWARK Appellant
AND	THE QUEEN Respondent

Hearing:	6 March 2014
Court:	Randerson, Venning and Cooper JJ
Counsel:	E J Forster for Appellant M D Downs for Respondent
Judgment:	1 April 2014 at 2:30pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Cooper J)

Introduction

The appellant, Daryl Lichtwark, appeals against his conviction after trial by jury on charges laid under the Misuse of Drugs Act 1975 that he possessed precursor substances[1] and equipment intending that they be used in the manufacture of methamphetamine. The defence run at the trial was that the items allegedly possessed by the appellant in fact belonged to and were being used by others.
[1]Hydrochloric acid and sulphuric acid.
Two grounds of appeal are advanced. The first (the hair sample issue) is that the trial judge, Judge Ruth, wrongly excluded evidence that the defence was intending to call dealing with traces of methamphetamine found in the hair of a child E, who was living at the address where the offending was alleged to have taken place.[2] The appellant sought to adduce the evidence to establish that the contamination occurred at a time prior to when he commenced living at the address.
[2]R v Lichtwark DC Hamilton CRI-2011-019-9361, 13 June 2013 [Ruling 2].
The second issue raised is trial counsel error by defence counsel, Mr Hesketh. It is said that Mr Hesketh’s cross-examination of key Crown witnesses was inadequate and that he consequently failed to ensure that the appellant’s defence was properly put. In particular, it is alleged that Mr Hesketh, failed:
(a)to put adequately to two witnesses called by the Crown that they were motivated by malice and had colluded to give false evidence that the relevant items were in the possession of the appellant;
(b)to explore with one of the witnesses that she had conspired to frame the appellant; and
(c)to pursue an issue about the rate of growth of E’s hair.
For the purposes of responding to the issues alleged as counsel error, Mr Hesketh swore an affidavit and was cross-examined at the hearing of the appeal. As a consequence of that cross-examination, Mr Forster responsibly abandoned some other allegations of counsel error.

Background

The appellant had been sentenced to home detention on 29 September 2011, and was serving that sentence at an address in Hamilton occupied by Mr Jared Mills. Mr Mills was in a relationship with Ms Renee Sharpe, whose daughter was in a relationship with the appellant. It appears that Mr Mills agreed to the appellant residing at the property because of these relationships. However, after about three weeks the appellant’s relationship with the daughter came to an end, and he began seeing someone else. This resulted in tensions between the appellant, Mr Mills and Ms Sharpe.
In November 2011, Mr Mills and Ms Sharpe left to stay at her house. On 5 December, they returned to discover…

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 The Queen

Details

AGLC: Lichtwark v The Queen [2014] NZCA 112
Case: [2014] NZCA 112
Decision Date: 1 April 2014 at 2:30pm

CaseChat Overview and Summary

Lichtwark v The Queen involved the appellant, a convicted criminal, challenging his conviction on several grounds, including the admissibility of expert evidence and the conduct of his trial counsel. The High Court of Australia was tasked with determining whether the trial judge had erred in admitting certain expert opinion evidence and whether trial counsel had performed inadequately in presenting the appellant’s defence. The central issue was whether the expert opinion evidence provided by Mr Hosking, regarding the exposure period of the appellant to methamphetamine, met the substantial helpfulness threshold under Section 25(1) of the Evidence Act. Additionally, the court examined whether trial counsel's failure to adequately cross-examine witnesses about potential collusion and framing amounted to ineffective assistance.

The court found that while the expert opinion evidence was relevant, its reliability and probative value were compromised by inherent uncertainties, making it insufficiently helpful for the jury. This conclusion aligned with the substantial helpfulness test, which requires the evidence to be more than merely probable. Furthermore, the court assessed the performance of trial counsel, determining that the alleged errors in cross-examining witnesses did not undermine the overall fairness of the trial. The court found no grounds to conclude that the trial was unfair or that the counsel’s performance was deficient to the extent it prejudiced the appellant.

The appeal was dismissed, upholding the appellant's conviction. The court determined that the exclusion of the contested expert evidence was appropriate and that any errors in the conduct of trial counsel did not amount to ineffective assistance. The decision reaffirmed the importance of the substantial helpfulness criterion in the admissibility of expert opinion evidence and highlighted the high threshold for overturning a conviction based on alleged trial counsel inadequacies.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Section 25(1) of the Evidence Act provides:25 Admissibility of expert opinion evidence (1) An opinion by an expert that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or in ascertaining any fact that is of consequence to the determination of the proceeding .… Apart from what was said in Mahomed v R, this Court has addressed the issue of substantial helpfulness in Platt v R where it was pointed out that the requirement that the evidence be substantially helpful creates a higher threshold than simple probativeness.[8][8]Platt v R [2010] NZCA 43 at [39]. The word “substantial” was discussed by Blanchard J in Vodafone New Zealand Ltd v Telecom New Zealand Ltd, where he referred to R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd in which Lord Mustill, emphasised the “protean nature” of the word “substantial”, ranging from “not trifling” to “nearly complete” and cautioned against trying to find a precise meaning for a word that is inherently imprecise.[9][9]R v Monopolies and Mergers Commission, ex parte South Yorkshire Transport Ltd [1993] 1 WLR 23 (HL) at 29, cited with approval in Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [54]. It is unnecessary to attempt that here. In accordance with Mahomed v R substantial helpfulness is to be assessed in terms of relevance, reliability and probative value. As has been seen, the Judge referred to Mr Hosking’s estimate of the period over which E would have been exposed to methamphetamine as a “guesstimate”. We accept Mr Forster’s criticism that the evidence had a stronger basis than guesswork. We are also satisfied that the evidence was relevant. However, the reliability and probative value of the evidence were low having regard to its inherent uncertainties. Although Mr Hosking referred at one stage to the balance of probabilities, we do not consider he was using that term to convey the meaning it has in the law of evidence. Rather, he seems to have regarded it as connoting something that was either “likely” or “possible”. We consider that the evidence was so uncertain and attended by doubt that it was properly excluded under the substantial helpfulness test. Consequently, this ground of appeal must fail. Mr Forster advanced four different errors allegedly made by trial counsel. The first three were overlapping. It was submitted first that Mr Hesketh had not specifically put to Mr Mills and Ms Sharpe that they had colluded so as to frame the appellant. Secondly, he said counsel had erred by not putting it to those witnesses that the reason they had colluded to frame the appellant was that they were motivated by malice or spite towards him. Another aspect of the “framing” argument was advanced as the third error. It concerned a statement made by Ms Sharpe to the police that she thought the “stuff in the coffee jar was iodine or betadine”. Mr Forster noted that the appearance of the substance was that of a brown liquid, and given it was in a coffee jar submitted that only somebody with “esoteric information” could have made the assertion made by Ms Sharpe as to what it was. It was submitted that counsel should have questioned her first about the limitations of her opportunity to observe what was in the jar, and then put to her that only someone who knew what was in the jar could possibly have suggested that it was iodine or betadine. At that point, it could have been argued she had revealed herself as part of a conspiracy to frame the appellant.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.