Judge Lance found “not Guilty”

District Court Judge Kevin Phillips  issued his judgment today. Defendant-judge Michael Lance  was acquitted of the charge of keying 21 scratches on all sides of the car of Auckland businessman Richard Cummins.  After the ruling, Mr Cummins expressed disappointment.  He said that while he believed the Police had gotten it right, the result was not unexpected given the tremendous resources the defendant had at his disposal.

Judge Michael Lance QC
Judge Michael Lance QC

Before the lunch break and conclusion of the defence witnesses, Lance’s counsel John Haig QC inquired whether the media should be notified as to Judge’s intention to render a verdict in the afternoon.  By this time, only kiwisfirst and Newstalk ZB were in the courtroom.  Judge Phillips agreed this was a good idea and the TV stations were duly notified.

After the afternoon break, Phillips J gave the verdict Haig expected.  According to His Honour Phillips, his ruling to acquit turned on discrepancy in the eyewitness testimony as to where they had sat, 10 metres away in the outside café.  He suggested the vision of the Police’s strongest witness would have been obscured by a cabbage tree trunk if he was not sitting in the seat he said he was when the incident occurred.  This was a definite possibility in the Judge’s mind.

On this, the judge relied solely on a photo taken by the defence two months ago.  Earlier, the police officer on the scene and two eyewitnesses gave contradicting testimony as to where each witness sat on the day in question – at a restaurant both admitted they had patronised frequently.

Kevin Phillips
Kevin Phillips

The eyewitnesses had testified not to notice the cabbage tree trunk last March – this after the diagram and photo of the scene was sprung on them by the defence in the witness box.   The hapless eyewitnesses looked puzzled when asked by the defence what they had been eating and what time the incident occurred.  Their claims that they had no memory of these inconsequential facts which happened a year ago were met with suspicion by the defence.   If the eyewitnesses could not remember where they were sitting a year ago at the restaurant, how could they be trusted.  None of these witnesses had a vested interest in the outcome.

The defence witnesses had a different experience.  They admitted to being made acquainted with the defence diagrams and police photos before the trial.

The Judge testified in his own defence.  He vaguely suggested an unmamed drug dealer tenant at the time could have done the damage, given what the defendant alleged was the man’s ciminal nature.  The Judge emphatically and repeatedly rejected doing the damage.  He said he at no point had keys in his possession and the witnesses who saw him touch the car with a clenched fist were mistaken.  He had touched the scratches with an open hand and outstretched fingers.

In cross-examination, Lance was asked about his peculiar behaviour when the police officer told him on the scene there was a prima facie case to arrest him.  Lance responded that he did not remember this being put to him.  The prosecutor was in disbelief.  Lance elaborated that he was not saying the police constable did not state this to him, only that he did not remember.  The Judge was an excellent witness in his own defence.  He gave the prosecution absolutely nothing.

The presiding Judge then asked Lance the question of how he was expected to get back into the building if he didn’t have his keys.  Lance responded that his partner came down shortly after he did and was responsible for letting him back into the building.

A former tenant in the apartment block was next up.  He shared the defendant’s unsupported view that it was the unidentified drug dealer in the building who possibly did the damage.  He said he noticed the damage shortly after 11 am when he left.  His attention was drawn because it looked like the car of his former girlfriend.  At the time he was unable to describe the damage to the police inspector who interviewed him but admitted the photos he was shown by the defence a week before the trial looked like what he saw a year ago.

The next defence witness, the café owner, repeatedly referred to the Judge-defendant as “Michael”.  He too noticed some scratches shortly before 11 am.  He was a good witness, but far from impartial. His testimony seemed to vindicate the defendant as culprit for at least some of the scratches – until the next defence witness was called.

The car owner testified earlier that he had parked the car there at 10.55 am, for an 11.00 am appointment.  Under cross-examination by the defence he did not deny this time could be off by as much as 10 minutes.

A fellow resident in his 80’s testified after the cafe owner.  He stated the defendant was out at the illegally parked vehicle when he arrived back from the “Arts Centre” at 11 am.  The man, who admittedly had cataracts, spoke for a time with the defendant next to the car.  He saw nothing untoward in the defendant’s behaviour.  After leaving briefly to shift his own vehicle, the man returned to talk with Lance.  The witness claimed that Lance then left the scene before him.  He did not notice any scratches.
In cross-examination, the prosecution did little to contrast this evidence with the well-accepted account that Lance was touching the car and lingering for a protracted period less than an hour later.

While this defence witness seemed to make a good character witness for Lance, it unquestionably demonstrated that Lance spent a lot of time around the vehicle in the hour and a half it was parked there.  Whoever keyed the car would likely have had to contend with the defendant who, by his own witness’s account, appeared to be standing guard on the car within minutes after it was parked.

The tow truck driver also testified as to finding this conduct by the defendant unusual after he had arrived an hour later.  The tow truck driver was talking to the Police constable when the male eyewitness approached to say he witnessed Lance deliver the final two scratches.

All defence witnesses claimed parked cars obstructing the apartment entrance were a constant annoyance to residents because of lack of markings on the street and curb.  They had all been contacted by a private investigator hired by the defendant and his high priced legal team to cast doubt on the prosecution’s case.

The defendant’s son, Auckland lawyer Simon Lance, was simultaneously running public relations in the Courtroom, asking the reporters if they needed information and imploring them to be fair to his father.

WEDNESDAY’S EVIDENCE:
After the first day of the trial of Police Conduct Authority Judge Michael Lance for criminal vandalism, the prosecution had called six of their seven witnesses.  This included the owner of the car which the Judge allegedly “keyed” on 23 March 2009, the two café patrons who witnessed it, two police officers on the scene and a tow truck driver.  At the start of the day, the courtroom was packed with press, as well as some notorious characters.

The criminal trial of Police Conduct Authority Judge Michael Lance for vandalism commenced today in the Auckland North Shore District Court.  The court room and press gallery were full.  The proceedings needed to be delayed to set out restrictions on the press.  A bonus was had when an unknown process server approached Judge Lance in the Courtroom to serve papers.  Judge Lance asked whether the service related to the current prosecution.  He was told they did not, at which point he informed the server that papers could not be served in the courtroom.  The press gallery strained to hear what was transpiring.  Lance refused to step outside to receive the docs.

The carnival atmosphere was befitting a judge whose personal and professional exploits have made him larger than life in his newfound retirement.  This atmosphere was heightened by the introduction of Judge Kevin Phillips of Invercargill as the trial judge, a man who physically could pass for the wizard of Oz and has his own checkered past in the Southland District Law Society.

The press interest was short, however.  All but one reporter had left by lunch break.

The Judge-defendant’s defence was quickly made clear.  The car had been parked improperly in front of his apartment for more than an hour.  It was a busy commercial area of Brown’s Bay, with the pedestrian lunch-time crowd on the street.  Despite two witnesses expected to testify seeing Lance J commit the damage to the vehicle, the defence asserted the Judge merely happened upon the vehicle and ran his hand across the scratches.

The eyewitnesses were mistaken or, alternatively, had a predisposition to see things that were not actually there.  The trial judge was told that the sheer number of people in the area suggested virtually anyone could have done the damage.
The prosecution’s case was laid out by a novice police prosecutor who repeatedly stumbled and actually cross-examined his own witnesses as to their evidence.  This no doubt pleased lead defence counsel John Haig QC and his second – formerly struck off lawyer Billy Boyd.  Not that Mr Haig was at his best.  He, on at least two occasions, asked witnesses what other potential witnesses observed and thought.

The defence did not contest the witness testimony that it was the shorts-clad judge-defendant they saw circling and touching the car on 23 March of last year.  Because Lance’s defence is that he was merely feeling the scratches on the car, he will be required to take the stand in his own defence tomorrow.

For the prosecution, the owner of the car was the first up.  He testified the numerous scratches were not on the car when he parked it.  The entrance to the apartment garage had a steel gate.  There were no yellow markings on the curb.
The next witness was the most damaging for Lance.  He was a former panelbeater, who emigrated from the U.K.  He and his wife were dining outside the café (as he testified) 6 metres away.  The witness claimed to have noticed Lance keying the vehicle and putting the keys in his right-hand pocket when he approached Lance.  Lance followed the man to the police officer on the scene to say that he would never do such a thing.

Haig suggested in cross-examination that, as a former panel-beater, the witness was super-sensitive to car keying.  The witness agreed.  Haig next suggested that the witness was wrong in his initial statement to police that he was 6 metres away.  The defence had measured the distance and it was, in fact, 9.59 metres away.  Was it possible the witness could not get his facts right and was his eyesight reliable at a distance much further than he had claimed?  The witness disagreed.

Defence counsel Haig then suggested that a trunk of a cabbage tree would have obstructed the witness’s view.  The witness claimed not to have noticed a cabbage tree.  Haig then suggested his infant child obstructed his view.  The witness stated that the two year old was in a stroller.  In the two hours this witness was on the stand, he was subjected to a stunning display of how many ways there are to ask how the Judge-defendant was allegedly holding the keys.  The witness never waivered and Haig finally threw in the towel.  Haig would get the witness and his wife to claim they had sat in the same chair a year ago.  Haig winked at the defendant behind him.  The presiding judge duly took notice of the discrepancy.

The wife, who also witnessed the incident, was less compelling.  She testified to witnessing the judge circling and touching the vehicle with a clenched right fist, and his thumb out.  She stated she never got out of her chair.  She claimed that the judge obviously had something in his hand from her vantage point but admitted in cross-examination that she was too far away to determine what it was – or to even be certain he held anything.

Her recollection was her and her husband had begun eating lunch when both noticed Lance damaging the vehicle.  Her husband had earlier testified that their children were the only ones to be served before he left his chair to report the incident.  Haig turned to Lance and both nodded with accomplishment at the conflicting memories on when the food was served.
The police officers spent most of the day waiting in the corridor to testify.

When they did they spoke of the evidence which seemed ostensibly to indict the judge.  The female constable spoke of Judge-defendant Lance claiming the illegally parked car must be from a “female Asian”.  He seemed not to notice how offensive his groundless allegation was.
Including his son Simon, Judge Lance had several supporters in the gallery to start the trial.