The Queen v Lichtwark [2007] NZCA 542 (28 November 2007)

Last Updated: 7 December 2007

IN THE COURT OF APPEAL OF NEW ZEALAND

CA146/07 [2007] NZCA 542THE 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 would remain with Mr and Mrs Smart.
[10] When Mr and Mrs Lichtwark returned from Australia, they arranged a meeting with CYFS to discuss their role in caring for Damien. At that meeting, although there was some dispute as to precisely what occurred, it is clear enough that CYFS informed Mr Lichtwark and his wife that the Smarts were now Damien’s caregivers. However, it was said arrangements would be made to see if they could visit Damien from time to time.
[11] For the next three months or so Mr Lichtwark and his wife unsuccessfully endeavoured to get permission through CYFS to see Damien.
[12] On Thursday 10 February 2006 Mr and Mrs Cramp (but not Mr Lichtwark or his wife) consulted a family lawyer, Ms Ho-Kum. Ms Ho-Kum’s evidence at trial was that she advised Mr and Mrs Cramp that if CYFS had legal custody of Damien (which was the position in law) the Cramps could not uplift Damien, and should contact CYFS.
[13] The following day Mr and Mrs Cramp, Mr Lichtwark and two other persons travelled to the Smarts’ residence in Ohaupo. Their stated position was that they wanted to take Damien to McDonalds, and then hold him for the weekend until the matter could be brought before a court the following Monday.
[14] Mrs Cramp went to the door and told Mr Smart she had come to take Damien out to lunch. Mr Smart said that CYFS had not given her permission to do so. An argument developed. Mr Smart went back inside his house, but he was then confronted by Mr Lichtwark and Mr Cramp. Mr Lichtwark pushed Mr Smart up against a hallway wall. He pinned him there while Mr Cramp forced his way past Mrs Smart, who was endeavouring to guard the door to a room where Damien was playing on a computer. There was something of a contretemps. Mr Lichtwark carried Damien outside. He was put in Mrs Cramp’s car and then taken away to Hamilton where Mrs Lichtwark was waiting. She also got into the vehicle. Damien was then taken to Morrinsville.
[15] The police were advised that Damien had been taken. When Mr Lichtwark and his wife heard that the police were interested in Damien’s whereabouts, they drove him to Raglan. Eventually Mr Lichtwark and his wife handed Damien over to the police at 5.30 pm on 12 February 2007.
[16] Various charges were laid against the persons involved in uplifting Damien on 11 February 2007. Judge Clark, who presided at the trial, was confronted with a series of charges laid against these persons, as principals or parties. However, all we have to consider on this appeal is the conviction for abduction returned against Mr Lichtwark. The Cramps filed, but later abandoned, appeals on this count.

Jury misdirection: did Mr Lichtwark act unlawfully?

[17] We can dispose of this head of appeal quite shortly for as Mr Boot, we think responsibly, acknowledged by the time the oral argument had concluded, there is no force in it.
[18] We do however make some observations, because how the matter was handled at trial clearly gave the Judge a certain amount of difficulty. Section 210(1) of the Crimes Act 1961 provides that it is an offence “with intent to deprive a parent or guardian or other person having the lawful care or charge of a young person of the possession of the young person” to unlawfully take or entice away or detain that young person.
[19] If Mr Lichtwark considered that he was “lawfully” entitled to take this child away from the designated caregivers he had to point to whatever “possessory” right he considered he held in this case. Then if a defence of that character was raised, it was for the Crown to displace that alleged right, to the criminal law standard.
[20] In this instance, the position in law was absolutely plain. Custody of the child was with the Chief Executive of CYFS, and by a proper process of delegation officers of that department had made arrangements for the care of the child. The hard fact of the matter is that Mr Lichtwark was without any “possessory rights” at the relevant time.
[21] In her summing up (at 9) the Judge did no more than repeat the words of the section: she said the Crown had to “show that the taking was unlawful, that is without authority or lawful excuse ...”. She clearly thought that was not really in issue, and that the issue here was “whether the Crown has proved beyond reasonable doubt that the accused did not believe in good faith that he or she was so entitled”. That approach was quite appropriate because that was what Mr Boot, in closing, as defence counsel, had told the jury. In other words the Judge gave a simple pro forma direction on something which was not thought to be “live”.
[22] Nevertheless, after it had been retired for nearly five hours, the jury returned with a question. It said that “it wished to have clarification of the phrase ‘lawful excuse’”. We were told from the bar that when that jury question came in, the Judge went off to “consult a couple of other Judges”. There was no discussion as such with counsel. The Judge did tell them what she intended to say before she spoke to the jury. In fairness to the Judge, no counsel then raised any concerns. But we remark that Judges should always carefully discuss jury questions with counsel.
[23] What the Judge told the jury was:

What you need to consider is whether the Crown have proved beyond reasonable doubt that no act of Parliament or authority based on a formal legal document existed. If the Crown have established that beyond reasonable doubt then there is no lawful excuse.

[24] As Mr Lawry candidly accepted a direction in that form was not, in the circumstances of this case, particularly helpful to the jury. What the Judge really needed to do (given the jury concern which had surfaced) was to point out whatever it was that Mr Lichtwark was relying upon for “lawfulness”, and to then summarise the Crown response to that. What the Judge said was technically correct, in an abstract kind of a way, but it was of little assistance to the jury in the context in which it had arisen.
[25] That said, there is no possible miscarriage of justice under this head because, as we have already identified, there simply was no lawful excuse which was ever advanced by Mr Lichtwark. Indeed, if the matter had been dealt with more precisely by counsel, the Judge may well have been able to say to counsel and the jury that there was no possible defence for them to consider under this head. It is difficult to see why this issue troubled the jury at all. It could well have been withdrawn from the jury at the outset.

A good faith defence?

[26] Section 210A of the Crimes Act 1961 provides that: “A person who claims in good faith a right to the possession of a young person under the age of 16 years cannot be convicted of an offence ...” .
[27] The Judge told the jury in her summing up (at 33):

Now Mr Boot’s for the accused, Jason Lichtwark and he said to you that the trial ultimately boiled down to this question: have the Crown shown beyond reasonable doubt that Jason didn’t believe in good faith, he was entitled to go and get possession of Damien; have the Crown disproved that?

[28] In short, what this case was all about was that although Mr Lichtwark did not have lawful rights to possession of Damien, it might have been arguable that he genuinely thought he did have such rights.
[29] On that point, the Judge directed the jury (at 17): “In good faith means genuineness or honesty of purpose ... the Crown say that each of the accused cannot have had a genuine or honest purpose, that they did not act in good faith and that they did not have the belief that their possession of Damien was lawful”.
[30] We note in passing that counsel did not address us on whether the belief has to be both honest and reasonable, and we do not decide the point. There appears to be no authority on the point and it would be wrong to decide it in the absence of full research and argument.
[31] The arguments may well be that on the one hand, in the criminal law both honesty and reasonableness are sometimes required. On the other hand, this is a rather special situation and the test should be simply one of honest belief in the right to “possession” – itself a somewhat bizarre term in this sort of context. “Reasonableness” would then be only an evidential indicator towards honesty or otherwise. There is some English authority which may support this latter viewpoint. On a comparable provision dealing with “any claimed right to the possession” of a child, the English Court of Appeal said in R v Austin (1981) 72 Cr App R 104 at 110:

Parliament in its wisdom undoubtedly decided that the mischiefs of matrimonial discord which are unhappily so widespread should not give rise to wholesale criminal prosecutions arising out of disputes about children, about who should have possession and control of them. That and that alone is the reason for the existence of the proviso to s 56.

See also R v Austin (1957) 120 CCC 118 (BCCA), dealing with a similar (now repealed) “good faith” provision in the Canadian Criminal Code.

[32] In any event, the starting point in this case was to identify whether, as a matter of evidence Mr Lichtwark ever said what his belief was.
[33] He was asked by his own counsel:

17. Who did you think at the stage [that you went to get the child] had the right to care for Damien?
1. At the time of going out I thought we had the rights to look after him.
17. Why did you think that?
1. Because of what the lawyer had told Steve and Jan [Smart].

It therefore appears that Mr Lichtwark was claiming to be acting upon what he had understood from the Smarts, after they had seen Ms Ho-Kum.

[34] Legal advice might well give rise to a good faith defence. But as against that, Mr Lichtwark was examined and cross-examined quite closely as to what his understanding was as a result of the meeting (at which he was present) with CYFS. It is quite apparent from a number of the responses that he made to questions in the course of that examination that he accepted that “at that stage [Damien] was going to be staying out at the Smarts”, “that he wouldn’t live with us”, and he even accepted that it was highly likely “that Damien was never going to live with him again on a full-time basis” (emphasis added).
[35] Leaving aside entirely therefore any question of the reasonableness of Mr Lichtwark’s belief, the credibility of his assertion that he was acting on what he had been told, at second hand, as to the legal position, was in question. It was entirely for the jury to assess whether he did have a genuine belief based on this second hand legal information. Mr Boot candidly, and rightly, accepted that it was open to the jury to reject his client’s evidence on that point, and to prefer the evidence as to what had happened at the CYFS meeting, as to his belief. Further, by arrangement, CYFS had gone to the Lichtwarks’ house and uplifted Damien’s clothes after the meeting. It could not at all have assisted Mr Lichtwark’s case that he had advanced contradictory answers: on the one hand he said at trial that he accepted what he had been told by CYFS, but he had then come up at trial with a different answer as to what he had been told by the Smarts after they had seen the lawyer. And in the context of the trial it is important to recall here also that Ms Ho-Kum’s evidence was not consistent with Mr Lichtwark’s account, indeed it was to the contrary.
[36] In these circumstances it was quite open to the jury to find against Mr Smart on this issue of honest belief. What he said at trial was contradictory, and the jury was entitled to prefer the view he gave as to the outcome of the CYFS meeting, or even to regard his evidence as to his belief generally as not being credible. The jury cannot be said to have acted unreasonably. This appeal point too therefore fails.

Conclusion

[37] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington