Price
[2022] NZHC 3324
•9 December 2022
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI 2014-083-957
[2022] NZHC 3324
IN THE MATTER OF an application to access court documents under the Senior Courts (Access to Court Documents) Rules 2017 in relation to the Court’s file in R v Lyttle STEVEN PRICE
Applicant
Hearing: 23 November 2022 Counsel:
M M Wilkinson-Smith for Crown C W J Stevenson for Mr Lyttle Mr Price appearing in person
Judgment:
9 December 2022
JUDGMENT OF MALLON J
(Access to documents)
Introduction
[1] Bretton Hall disappeared in late May 2011. His body has never been found. His friend, David Lyttle, was charged with his murder. Mr Lyttle’s arrest on that charge followed a “Mr Big” operation carried out by undercover police officers some years after Mr Hall’s disappearance. Mr Lyttle “confessed” to the murder at the culmination of the Mr Big operation.
[2] Prior to trial the Court of Appeal upheld the confession evidence as admissible.1 The evidence was therefore led at Mr Lyttle’s trial and he was convicted of murder. On Mr Lyttle’s appeal of his conviction, the Court of Appeal ruled the
1 Lyttle v R [2017] NZCA 245.
RE PRICE [2022] NZHC 3324 [9 December 2022]
confession evidence was inadmissible.2 The murder charge was subsequently dismissed with the effect that Mr Lyttle is deemed to be acquitted.3
[3] Mr Price applies for access to the Court file. He seeks access for the purpose of a podcast series for RNZ he intends to make about the Mr Big operation and Mr Lyttle’s trial. He seeks access to ensure his podcast series is accurate and complete. He says the issues raised are of public importance and the podcast will involve a detailed examination of them. He will comply with all suppression orders and abide by broadcasting standards.
[4] Mr Price was granted permission to attend the trial (seated at the media bench), including during chambers matters and the view, was permitted to make a recording of the trial and was given access to some of the trial documents and some of the court minutes, rulings and judgments. However, much of his request for access was to be considered following final disposition of the trial. Final disposition has occurred.
Background
[5] Mr Price’s original request was made on 20 August 2018. He re-applied for access on 15 August 2019 in relation to Mr Lyttle’s re-trial. In those applications, Mr Price sought to record the entire trial, access to the Court’s recording of the trial, and “access to the court file”. In particular, he sought access to “everything that will [help him] understand and accurately report on the context, evidence and issues at (and leading up to) the trial”.
[6] On 3 October 2018 and 7 March 2019 Simon France J granted Mr Price’s request to record the trial but prohibited such recording while undercover officers gave evidence.4 His Honour also stated that access to notes of evidence would be determined after the trial, and Mr Price could be given the pre-trial rulings and minutes after France J had reviewed the record (as time allowed).
2 Lyttle v R [2021] NZCA 46 at [208] and [213].
3 Criminal Procedure Act 2011, s 147; and R v Lyttle [2021] NZHC 3519 at [85].
4 R v Lyttle HC Palmerston North CRI 2014-083-957, 3 October 2018 (Minute of Simon France J).
[7] Mr Price was provided with some of the rulings, minutes and judgments before, during and after the 2019 trial. After the trial, he renewed his request for them on 24 July 2020 by email. While some rulings, minutes and judgments were provided in response to this request, others were not. It appears that this was because at least some of them were not to be disclosed until final disposition of trial and at this time the proceeding remained on foot. There were also a range of suppression orders in place.
[8] On 18 September 2020, Mr Price was asked to make an application identifying which documents he was still seeking, in addition to those already provided to him, if he wished to pursue the matter. Thereafter, Mr Price intermittently corresponded with the Registry. As time went on, Mr Price corresponded more persistently. The Registry intermittently responded but, for a range of reasons, no real progress was made with Mr Price’s request.
[9] Eventually, the extant request was brought to my attention and in early October 2022 Mr Price was provided with all the rulings, minutes and judgments that he did not already have.5 They included details of the suppression orders. They were provided subject to him keeping them secure and abiding by the suppressions.6 Mr Price was also directed to revert to the Court identifying any material that gave rise to any doubt about suppression.7
[10] Mr Price also identified a list of other items he wished to have access to. Some further items were added by Mr Price or at the Court’s suggestion (Mr Price making the point that it was difficult to know what might else might be on the file). The identified and further items were:
(a)photo booklet;
(b)agreed summary of facts;
(c)folder of exhibits;
5 Re Price HC Whanganui CRI-2014-083-957, 6 October 2022 (Minute of Mallon J) [Minute of 6 October 2022]; and Re Price HC Whanganui CRI-2014-083-957, 12 October 2022 (Minute of Mallon J).
6 Minute of 6 October 2022, above n 5, at [14].
7 At [16].
(d)Mr Lyttle’s statements;
(e)notices of admitted facts;
(f)transcripts from Mr Lyttle’s video interview with the police;
(g)transcripts from the Mr Big interview and scenarios;
(h)the photos of the white objects in Mr Lyttle’s car;
(i)profiling information;
(j)notes from the Mr Big operation;
(k)transcripts from intercepts;
(l)handwritten apology of the drug dealer referred to at [6] of my 6 October 2022 minute;
(m)note of house calculations;
(n)no-guns note;
(o)text exchanges;
(p)ESR’s blood statement;
(q)victim impact statements;
(r)parties’ submissions on the various issues;
(s)Jury Exhibit Folder (this is the same folder as (c));
(t)opening and closing submissions of counsel;
(u)jury question trail;
(v)summing up;
(w)bench minutes (covering chambers matters and directions to the jury); and
(x)notes of evidence.
[11] Counsel’s views were sought on this list.8 This led to agreement that Mr Price could have access to most of the items he sought and a hearing was convened on the remaining matters.
The law
[12] The application for access is made under r 11 of the Senior Courts (Access to Court Documents) Rules 2017. Rule 12 provides that, in determining a request for access under r 11, the Judge “must consider the nature of, and the reasons given for, the request” and take into account each of the following matters that are relevant:
(a)the orderly and fair administration of justice:
(b)the right of a defendant in a criminal proceeding to a fair trial:
(c)the right to bring and defend civil proceedings without the disclosure of any more information about the private lives of individuals, or matters that are commercially sensitive, than is necessary to satisfy the principle of open justice:
(d)the protection of other confidentiality and privacy interests (including those of children and other vulnerable members of the community) and any privilege held by, or available to, any person:
(e)the principle of open justice (including the encouragement of fair and accurate reporting of, and comment on, court hearings and decisions):
(f)the freedom to seek, receive, and impart information:
(g)whether a document to which the request relates is subject to any restriction under rule 7:
(h)any other matter that the Judge thinks appropriate.
8 Re Price HC Whanganui CRI-2014-083-957, 7 October 2022 (Minute of Mallon J); and Re Price
HC Whanganui CRI-2014-083-957, 14 October 2022 (Minute of Mallon J).
[13] These factors are neither exhaustive nor does any take primacy over the others. There is also no presumption in favour of disclosure.9 The Court must balance all relevant factors, using its discretion and evaluation, to determine the appropriate weight given to each factor.10
[14] This is further informed by rule 13. It provides that the principle of open justice is to be accorded higher priority during the substantive hearing than at other stages in the proceeding.11 After the substantive hearing, open justice has greater weight in relation to documents that were relied on in a determination, but the protection of confidentiality and privacy interests has greater weight than it has during the substantive hearing.12
This application
Relevant factors
[15] Mr Price’s application is for the purposes of a podcast (a report or broadcast) following the substantive hearing process. That is, it is after the time when the principle of open justice has higher priority. However, much of the request relates to documents relied on in the trial or considered in rulings and judgments where open justice continues to have weight in the balancing of relevant factors.
[16] Moreover, there is public interest in scrutiny of the controversial Mr Big technique and its impact on Mr Lyttle and his family. Mr Price is a legal academic and practitioner with particular expertise in media law and he also has a Master of Journalism. The Court therefore has no concerns about his assurances that he will comply with suppression orders and broadcasting standards in providing that scrutiny.
[17] Privacy interests are also relevant. Understandably, Mr Lyttle is concerned to protect the privacy of his family. Of necessity, the jury heard much about Mr Lyttle and his daily interactions with his family during the trial. The family’s privacy post
9 Crimson Consulting Ltd v Berry [2018] NZCA 460, [2019] NZAR 30 at [32].
10 Schenker AG v Commerce Commission [2013] NZCA 114, (2013) 22 PRNZ 286, relied on in
Crimson Consulting Ltd v Berry, above n 9, at [32].
11 Rule 13(b)(i).
12 Rule 13(c).
trial is now an important consideration. The same applies to Mr Hall’s family members, in particular his mother and his son. These privacy interests are relevant to the items that are provided to Mr Price.
[18] It is also relevant that Mr Lyttle is not opposed to Mr Price’s proposed podcast. Indeed, he considers the nature of Mr Big operations, the deceit involved and its harmful impacts, should be brought to light and persons involved held responsible.
[19] The other highly important relevant consideration is the need to protect the identity of undercover officers, informants and others implicated for the protection of their safety.
Agreed aspects
[20] Access to most of the items listed at [10] above, if they are part of the Court file, were not opposed by the parties subject to compliance with suppression orders and Mr Price may have access to them. In particular, Mr Price may have access on an unopposed basis to the items listed at [10(a), (b), (d), (f), (h), (m), (n), (p), (r), (t), (u),
(v) and (x)] above.
Folder of exhibits/jury exhibit folder
[21] This may be provided to Mr Price, with the exception of the text messages and the bank statements of Mr and Mrs Lyttle. The text messages are discussed below. The bank statements are not provided in the interests of Mr and Mrs Lyttle’s privacy, unless they consent to this through their counsel.
Notice of admitted facts
[22] There are several notices of admitted facts. These can be provided to Mr Price, except that the Covert Human Intelligence Source and Information Report (CHIS) annexed to the notice of admitted facts dated 16 September 2019 is not to be provided. The notice of admitted facts contains sufficient details of the informant information without identifying the informants. However, the CHIS information risks disclosing their identities and is not to be provided.
Profiling information
[23] Profiling information used for planning the Mr Big operation was not produced at trial and is not on the Court file to be accessed. It was, however, put to the police officer in charge of the undercover operation in cross-examination. The notes of evidence, to which Mr Price will have access, therefore contains the pertinent aspects of the profiling information.
Scenario document
[24] The Crown objects to the crime scene scenario document being provided to Mr Price. This was on the basis that the document was an internal police document setting out the detail of the police procedure for the Mr Big operation. Mrs Wilkinson- Smith says that, while the general nature of Mr Big operations is public knowledge, this document could show a pattern of how the Mr Big technique operates, which could jeopardise its future effectiveness in body recovery investigative operations. She says it is not necessary for Mr Price to have the document itself, as the submissions, judgments and notes of evidence refer to it. Further, it was not produced at the trial but came before France J as part of his early stay application decision. The Crown’s main concern is that Mr Price will report, based on this document, that Mr Big operations always occur with this pattern.
[25] Mr Stevenson submits that the document is potentially important and relevant given its misleading nature. His recollection of the document is that it was not a police planning document, but a purported accurate summary of this operation and other operations of this kind, prepared for the purpose of addressing applications to the Court to determine whether confessions extracted pursuant to an operation are admissible at trial. He submits the document was used for this purpose in this case and it summarised the operation in “vanilla” terms. He submits that it was misleading because it did not give a true picture of the manipulative nature of the operation. The extent of the manipulation was apparent from the full disclosure of the operation as it played out.
[26] Mr Price submits it is relevant and should be disclosed because it was relied on in submissions to the Court. At the hearing I indicated that I was sympathetic to
the request for access to this document for this reason, and taking into account Mr Stevenson’s concerns, but subject to viewing it. However, I did not recall seeing it during the trial. Mrs Wilkinson-Smith thought that it might not be on the court file, but suggested that, if it was, it might be the first document on the top of red folders that were at some point provided to the Court. I have since asked my clerk and the Registry officer to locate the red folders so that I could view the scenario document. However, we have been unable to locate the red folders or the scenario document. The Registry believes that they may have been uplifted at some point (I infer because they were provided to the Court for a specific purpose only and were regarded as confidential police information).13 In any case, the Court cannot grant access to a document it does not hold.
Transcripts of the Mr Big scenarios
[27] The Crown is concerned about releasing the entire transcripts from the undercover operation. It believes that the transcripts will provide too much detail so that the pattern of Mr Big operations can be identified in way that is not publicly available. Further, the “chat” from undercover officers that is intended to establish rapport etc with the subject of the operation may sometimes involve real anecdotes in relation to family or geography that could lead members of the public to identify the officers. The Crown proposes releasing to Mr Price excerpts of the intercepts contained in the notice of admitted facts and counsel’s submissions but not the full transcripts.
[28] Mr Price says that he had made notes of the parts of the intercepts he would like to check against the transcripts and did not intend to publish the anecdotes about children or geographical information. He seeks access to cross-check his interpretation of what was produced at trial. He is aware that there is a limit to what he needs to know and is alive to concerns about protecting the identities of undercover officers and informants.
13 Possibly during pre-trial applications before Simon France J or the review of police disclosure by Cull J.
[29] At the hearing, I directed Mr Price to liaise with the Registry to organise a time where he can access the folder of transcripts in a secure room at Court. He can then identify the transcripts he would like to use and come back to the Court and counsel if he has any doubts about using the material. Mr Price can publish excerpts of the transcripts, but cannot publish identifying information of the undercover officers.
Mr Big notes
[30] Mr Big made notes in preparation of the Mr Big interview that took place at the culmination of the operation at which Mr Lyttle “confessed”. Mr Price sought access to these notes but they were not produced at trial and are not on the file. The notes were however put to the undercover officer in charge in cross-examination. Pertinent aspects of the notes are therefore included in the notes of evidence to which Mr Price will have access.
Transcript of Mr Big interview
[31]Access to this is not opposed.
Transcripts of intercepts between Mr Lyttle and his family
[32] There are audio and transcripts of intercepts between Mr Lyttle and his family. The Crown takes no issue with this. Mr Stevenson advises that Mr Lyttle’s position is that Mr Price may have access to the transcripts of the intercepts between Mr Lyttle and his family, but only those that were referred to at trial. He objects to the recordings themselves being provided to Mr Price. Mr Price accepts this approach.
Handwritten apology
[33] The Crown objects to Mr Price’s access to this for the purposes of his podcast. The content of the note is in the notes of evidence. However, if a photograph of the note was published, it would identify its author. The author, a drug dealer, has name suppression due to safety concerns for Mr Lyttle and his family. Name suppression was granted at the trial. It was not included in the list of suppression orders confirmed
by France J at final disposition of the trial.14 However, the suppression order has not been revoked, the reasons for suppression continue to apply so far as counsel and the court are aware, and that suppression order is therefore confirmed.
Texts
[34] Mr Price also seeks access to text messages produced at trial that indicate a drug deal or drug deals were taking place close in time to Mr Hall’s disappearance. Mr Price notes that the detail of this evidence was difficult to follow at trial and seeing the text messages put to witnesses and produced to the jury may assist with an understanding of this evidence.
[35] The persons sending or receiving these messages may, however, recognise them if they are published. Some of the text messages relate to a person with name suppression. There is a concern that publication of the full content of the text messages will give rise to safety considerations for Mr Lyttle and his family. The content of these messages is included in the notes of evidence so Mr Price has access to it in this way.
[36] Mr Stevenson proposed that the Court to allow him time to give this aspect of the request some more thought. He will examine the text message evidence, speak to his client and clarify his instructions on this point. He can then advise the Court, the Crown and Mr Price if there are text messages that can be disclosed without jeopardising anyone’s safety. Failing that, Mr Price will rely on the notes of evidence and closing submissions of the parties and will comply with suppression orders.
[37]In addition to these text messages, the jury exhibit folder contains:
(a)messages from Mr Hall’s phone where he contacts and is contacted by multiple people from 2 May 2011 to 7 June 2011, including people with name suppression (most of these asking when Mr Hall is home etc); and
14 R v Lyttle HC Whanganui CRI-2014-083-957, 22 March 2022 (Orders of Simon France J).
(b)messages between Mr Hall and Mr Lyttle from 4 to 8 June 2011 and which are mostly about the house Mr Lyttle was building for Mr Hall and building supplies for it.
[38] Subject to Mr Price complying with suppression orders, I do not understand there to be any opposition to Mr Price have access to these text messages. However, if counsel do have concerns about this, could they please advise with five days of the date of this judgment.
VIS
[39] The Crown advises that Mr Hall’s mother and son do not want their victim impact statements released to the media. Mr Price is not to have access to them. Their privacy interests prevail over other considerations.
Bench minutes
[40] The only issue raised about Mr Price’s access to Bench minutes is that one of them refers by name to the jury foreperson. Subject to redaction of his name, Mr Price may have access to the Bench minutes.
Result
[41] Accordingly, Mr Price may have access to the items on the Court file as set out above. The access is granted on the basis that he complies with all suppression orders. Mr Stevenson is to obtain further instruction from his client as set out at [36] above. Counsel are to respond with any concerns as set out in [38] above.
Mallon J
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