By Tara Shaskey, Open Justice reporter of 
File photo. Photo: Photo / 123rf
A man representing himself in a trial begged the judge for an adjournment, claiming he had Covid-19 and was "throwing up", but his request was refused and the hearing forged ahead.
Now his conviction has been quashed - but not because he was "extremely ill" at the time and could not defend himself properly, as Steven Michael Lichtwark argued on appeal after being found guilty.
In what Lichtwark may consider a stroke of luck, a technical glitch in the court on the day of his trial resulted in none of it being recorded or transcribed, leaving a senior court with no choice but to overturn his conviction.
According to the High Court judgement released this month, Litchtwark's judge-alone trial was held in the Kaikōura District Court in October last year before Judge Mark Callaghan.
Litchtwark was defending a charge of refusing to give a blood specimen when requested by police.
It was alleged that in April last year, he went to a medical centre in Kaikōura after being injured in a fight.
But the centre refused to treat him due to his behaviour and then police allegedly found him drunk in his car, consuming alcohol.
Lichtwark was arrested for allegedly breaching a bail condition requiring him to abstain from alcohol. At the station, police required him to do a breath-screening test but he allegedly refused.
It was alleged he then also refused to provide a blood specimen.
At his trial, Lichtwark applied for an adjournment, telling the judge he had Covid-19 and was unwell.
However, according to the High Court decision, he said he had not taken a Covid test and Judge Callaghan issued an oral ruling declining the application.
The trial proceeded and Lichtwark cross-examined the sole witness, a police constable.
Lichtwark gave evidence, alleging he had begun consuming alcohol after he arrived at the medical centre.
The decision stated it was unclear what other evidence he gave, and which aspects of the prosecution case he contested, but after the trial the judge found him guilty.
In his subsequent appeal notice to the High Court, Lichtwark wished to challenge his conviction on the grounds that he was too sick to defend himself properly during the trial.
"He said he was 'throwing up and stated [he] was unfit at the time'.
"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."
In the High Court ruling, Justice David Boldt said Lichtwark's grounds of appeal "are not, on their face, especially compelling".
Police submitted Lichtwark defended himself in a "perfectly able manner" and did not appear adversely affected by illness.
However, it was acknowledged "there was an episode" where Lichtwark was heard making "loud vomiting noises" in the bathroom.
Justice Boldt said that without a medical certificate or any other proof of Covid-19, such as a test, the judge was 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."
However, Justice Boldt said the problem in considering Lichtwark's appeal was that there was a technical failure in the court on the day he was tried.
Because the hearing was not recorded or transcribed, the judge's adjournment ruling, notes of evidence, and the reason Lichtwark's evidence was rejected could not be provided to the High Court, meaning the decision on appeal could not be scrutinised.
"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," Judge Boldt found.
"On their face the grounds of appeal are weak, but Mr Lichtwark is still entitled to ask the court to rule on them."
Police confirmed that without a formal record of the hearing they were not in a position to contest the appeal or to argue the conviction should stand.
"It follows a miscarriage of justice has arisen, and the appeal must be allowed," Justice Boldt ruled.
While Litchwark's conviction was overturned, the judge directed a new trial should take place.
* This story originally appeared in the New Zealand Herald.
