The Queen v Lichtwark - [2007] NZCA 542

IN THE COURT OF APPEAL OF NEW ZEALAND
CA146/07
[2007] NZCA 542
THE QUEEN
v
JASON JOHN LICHTWARK
Hearing:20 November 2007

Court:Hammond, John Hansen and Miller JJ
Counsel:G Boot for Appellant

H D M Lawry for Crown

Judgment:28 November 2007 at 10 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.
REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1]       On 20 December 2006 the appellant was found guilty by a jury in the District Court at Hamilton on counts of abduction, assault, and male assaults female.
[2]       He was sentenced on 19 March 2007 to 150 hours community service and ordered to pay $500 reparation.
[3]       Mr Lichtwark now appeals (only) his conviction for abduction on the grounds that the trial Judge misdirected the jury in her summing up on that count, and that the verdict was contrary to the weight of the evidence.
Background
[4]       These charges related to an incident that occurred on 11 February 2006. Mr Lichtwark, his wife, and his wife’s parents (Mr and Mrs Cramp) were alleged to have abducted a four year old child, Damien Smart, from the home of his paternal grandparents (Mr and Mrs Smart) in Ohaupo, which is in the Waikato.
[5]       Before November 2005 Damien had lived most of his life with Mr Lichtwark and his wife. On 26 September 2005 a Care or Protection Plan for Implementation of Order under s 128 of the Children Young Persons and Their Families Act 1989 (CYPFA) was filed in the Hamilton District Court. That Plan provided for the making of a custody order in favour of the Chief Executive of the Department of Child Youth and Family Services (CYFS) under s 101 of the CYPFA and an access order of Mr Chris Smart under s 121 of that Act.
[6]       The Plan was to be reviewed within six months. It provided that Damien was to remain in the care of Mr and Mrs Lichtwark “with Chris Smart to be given the opportunity to meet Damien’s emotional and physical needs”. If the objectives of the Plan were not achieved, then Damien was to remain in the care of Mr and Mrs Lichtwark “who will become his permanent caregivers”.
[7]       On 7 October 2005 the Hamilton District Court issued a custody order under s 101(1)(a) of the CYPFA granting custody of Damien to the Chief Executive of CYFS.
[8]       Whilst Damien was living with Mr Lichtwark and his wife, Mr and Mrs Smart were able to visit him or have him visit them in Ohaupo. But after the Plan was instituted some difficulties arose between Mr Lichtwark and his wife and Damien’s assigned social worker, Ms Fleming. It appears that Mr and Mrs Smart’s access to Damien also became somewhat more limited.
[9]       Mr and Mrs Lichtwark were in Australia from 31 October to 10 November. During that period CYFS placed Damien in the care of Mr and Mrs Smart. Some concerns arose about Damien’s wellbeing. CYFS decided that Damien…

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 The Queen v Lichtwark

Details

AGLC: The Queen v Lichtwark [2007] NZCA 542
Case: [2007] NZCA 542
Decision Date: 28 November 2007

CaseChat Overview and Summary

In the appeal, Jason John Lichtwark contests his conviction for abduction. The appeal hinges on two main issues: whether the trial judge misdirected the jury regarding the definition of 'lawful excuse' and whether the jury's verdict was against the weight of the evidence. Lichtwark argues that the judge's summing up on the concept of 'lawful excuse' was inadequate, and he contends that the verdict was contrary to the weight of the evidence, suggesting that there might have been a good faith belief in his entitlement to the child.

The Court of Appeal first addresses the issue of jury misdirection. Section 210(1) of the Crimes Act 1961 criminalizes the unlawful taking of a child with intent to deprive a lawful caregiver of possession. The trial judge's direction to the jury, while technically correct, was deemed unhelpful in context. The Court notes that the judge should have discussed the specific circumstances with counsel before addressing the jury's question. However, the Court finds no miscarriage of justice as there was no lawful excuse for Lichtwark's actions.

Next, the Court considers whether Lichtwark acted in good faith. Section 210A of the Crimes Act 1961 exempts from liability those who genuinely believe they have a right to the child's possession. Lichtwark claimed that he believed he had the right based on information from the Smarts, who had consulted a lawyer. However, the Court observes that Lichtwark's evidence was inconsistent and contradictory, particularly regarding his understanding of the CYFS meeting. The jury was entitled to reject Lichtwark's testimony and find that he did not genuinely believe he had lawful possession of the child.

The Court of Appeal ultimately dismisses the appeal, affirming the conviction for abduction. The Court concludes that the trial judge's direction, while not ideal, did not result in a miscarriage of justice and that the jury's verdict was supported by the evidence.

Orders