R v Lyttle

[2022] NZHC 1230

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2014-083-957

[2022] NZHC 1230

THE QUEEN

v

DAVID OWEN LYTTLE

On the papers

Counsel:

M M Wilkinson-Smith for Crown

C W J Stevenson and E A Hall for Mr Lyttle

Ruling

30 May 2022

RULING OF SIMON FRANCE J

(Permanent suppression of name of informant)

[1]    This is the final matter to be addressed in a homicide prosecution that commenced in 2014 and ended with a s 147 dismissal of charges in late 2021.1 The context has sufficiently been aired in numerous judgments at all levels to need no detailing now. The case is known  for  the  role  a  police  undercover  operation  (“Mr Big”) played, but the context of the victim’s death itself gave rise to various matters.

[2]    Mr Hall was involved in the drug world and there was a narrative different from the Crown case that the drug scene was the real context for Mr Hall’s disappearance. Not uncommon in these situations the police received a lot of

1      R v Lyttle [2021] NZHC 3519.

R v LYTTLE [2022] NZHC 1230 [30 May 2022]

information on a confidential basis and throughout the process suppression orders have existed for many persons both providing information and witnesses.

[3]    Recently and by consent  I  made  final  suppression  orders  in  relation  to  11 persons.2 A contest remains, however, concerning one person and this ruling addresses that. It is safe to refer to the person as RR. Anyone who knows who he is will recognise him by that reference. Those who do not know will not be enlightened by the letters.

[4]    The opposition comes from counsel for Mr Lyttle. RR was to give evidence as what is called a jailhouse informant. His evidence was not led, as I understand it, on the grounds that he was shown to be unreliable. This in turn related to previous occasions where he was cast in the same role, and there is material to suggest that evidence was incorrect.3

[5]    Mr Stevenson submits that research shows exposure and prosecution are the best way to deter untrue evidence such as it is submitted RR would have given in this trial. Publicity not only deters, but also removes a cloak of anonymity that allows people to do this on repeat occasions without interested parties such as the present defendant being aware of the history.

[6]    I accept the general concern, and indeed see the arguments for publicity notwithstanding that it comes with clear personal risk to the individual. Exposing someone as a jailhouse informant is to label them in a way that inevitably puts their personal safety at risk. The balancing view to that risk is that anonymity is lost because the person was seeking to give untrue evidence, often for their own gain, and there is no legitimate public interest in preserving anonymity.

[7]    In the present case, however, the Crown advises RR is elderly and suffering from dementia. He was unable to understand the explanation by Police officers of this

2      R v Lyttle HC Wellington CRI-2014-083-957, 22 March 2022. Those witnesses, and the one at issue in this decision, have had interim suppression throughout.

3      There is a dispute as to whether the material shows it to have been deliberately incorrect. I cannot resolve that but am content to analyse suppression as if it were, recognising there has been no prosecution laid on relation to it.

application and its implications. He cannot, it seems for the same reason, obtain advice. Given his condition he is not a risk of again being an informant, so publicity would be for the sake of principle and general deterrence rather than any future risk the particular individual poses.

[8]    For these case-specific reasons I order name suppression on the basis that publicity would involve a real risk to his safety through being disclosed as an informant, and his personal circumstances outweigh what might otherwise be valid argument for exposing him to that risk.

Orders

[9]    The name of RR is permanently suppressed as regards his role in this prosecution. The judgment is not suppressed so the initials are used. It will be apparent from the file who RR is if it is necessary for someone to know to avoid breach.

[10]   I omitted previously to make an order sought by the Crown. There is to be no publication of any voice recording of the undercover officers who gave evidence at trial. Their true identity is suppressed.

Simon France J

Solicitors:

Crown Solicitor, Whanganui for Crown