R v Lyttle
[2020] NZHC 488
•11 March 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI 2014-083-957
[2020] NZHC 488
THE QUEEN v
DAVID OWEN LYTTLE
Hearing: 24 February 2020 Counsel:
R K Thomson for Crown
C W J Stevenson and E A Hall for Mr Lyttle
Judgment:
11 March 2020
JUDGMENT OF MALLON J
(Costs)
Introduction [1]
The background [5]
Police investigation [8]
First adjournment [17]
Second adjournment [20]
Third adjournment [21]
Fourth adjournment (mistrial) [24]
Third stay application [29]
Trial proceeds in 2019 [41]
The disclosure regime [44]
The costs regime [49]
My assessment [62]
Whom the award should be made against [83]
Whom the award should be made to [88]
Result [93]
R v LYTTLE [2020] NZHC 488 [11 March 2020]
Introduction
[1] David Lyttle is serving a sentence of life imprisonment for the murder of his friend, Brettan Hall.1 Mr Hall was last seen alive in late May 2011. Mr Hall’s body has not been found to this day. Mr Lyttle maintains his innocence and has lodged an appeal against his conviction.
[2] Mr Lyttle’s trial took place over nine weeks at the end of last year, five and a half years after his arrest and over eight years after Mr Hall’s disappearance. There had been four earlier trial dates set. The trial did not proceed on the first date, largely because the admissibility of certain evidence was awaiting the outcome of a similar case. The next two dates were vacated because the Police had failed to meet their obligations under the Criminal Disclosure Act 2008 (CDA). The trial commenced on the fourth date, but a mistrial was ordered in its second week for the same reason.
[3] Mr Lyttle applies for a costs order of $150,000 against the prosecutor for disclosure failings under s 364 of the Criminal Procedure Act 2011 (the CPA). He seeks an order that half of the costs be ordered against the Crown prosecutor who took over the conduct of the case in October 2016, and that the other half be ordered against the Police.
[4] The Crown accepts the requirements of s 364 are met. However, in light of changes in police practice and payments already made as a direct result of the disclosure failings, it says no order is appropriate in this case. If any order is made, the Crown says it should be made against the Police only.
The background
[5] Mr Lyttle and Mr Hall had known each other for many years and were close friends. In late 2010 and early 2011, Mr Lyttle was building a house for Mr Hall on a remote property north of Whanganui. Mr Hall provided cash to Mr Lyttle to purchase building materials. Mr Lyttle was to be paid for his labour once the building was at the lock up stage.
1 R v Lyttle [2019] NZHC 3454.
[6] The Crown’s case was that Mr Lyttle was in financial difficulty and had been using money intended for the purchase of building materials for his personal use. Mr Hall was very angry when he found out about this and things came to a head when the two of them were alone at the building site on 27 May 2011. The Crown alleged Mr Lyttle shot Mr Hall that day and disposed of his body elsewhere.
[7] Mr Lyttle has always denied his involvement in Mr Hall’s disappearance. From the outset he suggested that Mr Hall may have met his death at the hands of his drug dealing associates and this was put forward as a reasonable possibility in his defence at trial. Mr Hall was on parole for drug offending at the time of his death. He had been the victim of violence and threats from people involved in the drug world some years earlier. Mr Hall remained involved in drugs and with drug associates after his release on parole, at least to some degree. The remote property on which he lived was part owned by one of those associates (“R”).2
Police investigation
[8] There were three phases to the police investigation leading to Mr Lyttle’s arrest. The first phase followed the realisation in the week of 30 May 2011 that Mr Hall was missing. A large-scale search and rescue operation got underway (the largest in the Central District’s history at that time). As this went on without finding any sign of Mr Hall, a homicide investigation was also commenced. R was a suspect in that investigation.
[9] Early into the investigation, Mr Lyttle also became a suspect. Police enquiries indicated Mr Lyttle was the last person to see him alive. Mr Lyttle told the Police he had shared a cup of tea with Mr Hall at his property on Sunday 29 May 2011 when Mr Lyttle had gone there to do some building work. This was at odds with other enquiries which indicated Mr Hall was already missing from his property by early morning on Saturday 28 May 2011.
[10] Enquiries also revealed that Mr Lyttle had made an odd journey in the early hours of 29 May 2011, driving up and down State Highway 3 between the Bulls and
2 R’s identifying particulars are suppressed.
Turakina area, and up and down the roads that led to the beach in that area. Mr Lyttle made other statements the Police regarded as suspicious. This included apparent lies about his involvement in purchasing two firearms that were now missing. In his many statements to the Police during this period of the investigation, Mr Lyttle proffered his view that Mr Hall was most likely the victim of foul play from his drug associates.
[11] The first phase of the police investigation concluded with a lengthy police DVD interview in August 2011. Mr Lyttle denied any involvement in Mr Hall’s disappearance. No arrest was made at this time. The investigation team referred the matter to the police undercover team for that team to consider whether they might utilise the “Mr Big” technique to progress matters.
[12] The second phase of the police investigation involved an undercover operation using this technique. The operation took place between March 2014 and 27 June 2014 but planning for the operation occurred before this. The operation involved undercover officers who pretended to be members of a fictitious criminal group. Mr Lyttle first met one of the supposed members of the group on a fishing trip he had supposedly won as a prize for participating in a (fictitious) survey. Over a period of months Mr Lyttle was befriended by this officer, learnt about the (fictitious) group and its activities and was recruited into assisting them with their (fake) illegal activities. Obviously, for the technique to work, Mr Lyttle was unaware it was all fake.
[13] The undercover operation culminated in an interview with another undercover officer who was the supposed head of the criminal group (“Mr Big”, who in this case was known as Scott). The supposed purpose of the interview was for Mr Lyttle to gain a place in the criminal group. Mr Lyttle was led to believe very significant financial rewards would follow from gaining that place. To become a member of the criminal group Mr Lyttle had to demonstrate the three pillars of the group, namely trust, loyalty and honesty.
[14] During the interview those three pillars were discussed and emphasised by Scott, as they had been in the lead up to the interview. Mr Lyttle was encouraged to talk about his involvement in Mr Hall’s disappearance. He initially denied having anything to do with it. Scott made it clear to Mr Lyttle that he did not believe this, and
that Mr Lyttle could tell him the truth and he would be able to sort it all out for him. Mr Lyttle then said he shot Mr Hall, cut his body in two and buried it in two places. He described how he had carried this all out. Mr Lyttle was told he was now a member of the group.
[15] The undercover officers then took Mr Lyttle on a drive along the Himatangi beach and Santoft Forest/Scott’s Ferry area so that he could show them where he had buried Mr Hall’s body. Mr Lyttle had told Scott he had made sure the body would never be found but Scott wanted to make sure of this. Mr Lyttle identified the two places where he claimed to have buried Mr Hall, understanding that Scott was intending to make arrangements to tie up any loose ends later. The undercover operation ended when the drive was over and Mr Lyttle was arrested on the murder charge.
[16] The third phase followed Mr Lyttle’s arrest. The Police undertook searches of the areas where Mr Lyttle had said he had buried Mr Hall’s body. The body was not found in either place. Mr Lyttle made statements to the arresting officer and to prison officers. These statements formed part of the evidence against Mr Lyttle at trial.
First adjournment
[17] Delay after Mr Lyttle’s arrest initially arose because the admissibility of the statements made to Scott were challenged. Another case involving the Mr Big technique was before the Supreme Court.3 Once that decision was issued, the High Court determined Mr Lyttle’s statements to Scott (and related statements to another undercover officer) were admissible.4 An appeal was brought.5 Mr Lyttle lost confidence in his lawyer before the appeal was determined and arranged for Mr Stevenson to act for him.
[18] All of this meant that initial tentative trial allocations were re-allocated and a firm 2016 trial date had to be abandoned (the first adjournment). By this time
3 R v Wichman [2015] NZSC 198, [2016] 1 NZLR 753.
4 R v Lyttle [2016] NZHC 774.
5 Lyttle v R [2017] NZCA 245.
Mr Lyttle had been in custody for two years. He was released on electronically monitored bail subject to a curfew.
[19] During this period the Crown prosecutor changed. The Whanganui Crown Solicitor initially had the carriage of the case. When he was appointed to the District Court Bench, the New Plymouth Crown Solicitor assumed the carriage of the case for a period. Mrs Wilkinson-Smith took over the prosecution in October 2016, as by this time she had been appointed to replace the former Whanganui Crown Solicitor.
Second adjournment
[20] The new trial date was scheduled to commence on 15 May 2017. However, during 2016 and early 2017 the defence encountered difficulties with obtaining disclosure of material on the undercover file, including the audio recordings the undercover officers had made of their interactions with Mr Lyttle. These difficulties required the defence to seek the Court’s assistance on at least three occasions (21 September 2016, 25 October 2016 and 28 February 2017).6 These difficulties, coupled with late disclosure of one police notebook and then disclosure of a further 599 pages of notebook entries in March 2017, meant the 15 May 2017 trial had be vacated (the second adjournment).
Third adjournment
[21] A new trial date was scheduled to commence on 1 November 2017. In the months leading up to this date the defence received late disclosure of material. This included:
(a)an expert report from Dr Shand concluding that Mr Hall’s remains would have been found by the Police if he was buried where Mr Lyttle had told Scott;
(b)police notebooks of the senior officer in charge and his deputy;
6 R v Lyttle [2016] NZHC 2229; R v Lyttle HC Whanganui CRI-2014-083-957, 25 October 2016; and R v Lyttle HC Whanganui CRI-2014-083-957, 28 February 2017.
(c)68 CCTV hard drives and polling data from 2011 (including data relating to a reconstruction of Mr Lyttle’s movements);
(d)a statement made by “L” to the Police in 2014, shortly before the undercover operation was to commence, to the effect that R had arranged to kill Mr Hall because R had drug debts to Mr Hall;7
(e)other informant information about Mr Hall’s links with R and his associates;8 and
(f)other disclosure information concerning the sites where the missing firearms were believed to have been stashed.
[22] This late disclosure followed persistent enquiries from defence counsel. There had also been an assurance to the Court in February 2017 that all police notebooks had been disclosed. This led to Mr Lyttle’s first application for a stay of the proceeding. He claimed he could no longer have a fair trial in part because of the disclosure issues.9 This application was dismissed by the High Court in a decision given on 27 October 2017. In dismissing the application the Judge said:10
[41] The real issue is disclosure and I have commented on that. There has been a serious failure on the part of the Crown, which has responsibility, and the Police, which control the flow of information. This trial has now been twice adjourned because of failures with disclosure. The continued drip feed of material important to the defence, a drip feed that is still happening; the fact that most of this further disclosure is resulting only as a consequence of persistent harassment by the defence; the disturbing circumstances surrounding the disclosure of the [“L”] job sheet; and the reality that incorrect assurances have been given in several areas on several occasions, including to the court on oath, only to be followed by large tranches of disclosure, all point to a serious systematic failure.
[42] It is not for me to speculate why this has happened but the prosecution services as a whole should be embarrassed at the least by what has happened. The family of the victim, the public and the court deserve better.
7 L’s identifying particulars are suppressed.
8 R v Lyttle [2017] NZHC 2631 at [26]-[34]. Informant information came from a number of sources and was ultimately included in a Notice of Admitted Facts for the jury.
9 It was also alleged the Police had conducted an inadequate investigation of other suspects because they had developed tunnel vision that Mr Lyttle was the offender.
10 R v Lyttle, above n 8 (footnotes omitted).
[43] I determined that a stay of proceedings was not appropriate. First, while a trial could not take place in November 2017 because of the doubts engendered by these disclosure failings, it seems to me they must be able to be remedied. I have required the Crown to file within 15 working days a plan for reviewing the entire disclosure. The purpose is to generate sufficient confidence that a fair trial can occur next year. If that is done, the stay will be declined. As emphasised by the authorities, the stay is forward thinking, focusing on the fairness of the trial to come.
[44] Second, this is a murder allegation, and Mr Lyttle has made admissions to the killing. The public interest in holding a trial is high, as long as there can be surety it will be fair.
[45] In R v Antonievic the Court of Appeal affirmed that the ultimate question is whether a stay is necessary to maintain public confidence in the integrity of the criminal justice system. If I am correct that the discovery concerns can be remedied, and a fair trial is then possible, then the answer to the ultimate question must plainly be no. Process deficits, including failures by the prosecution to disclose, not motivated by a desire to mislead or secure an improper conviction, and which can be remedied, will not usually provide a basis for the exceptional step of a stay of proceedings.
[46] A concern about the fairness of the upcoming trial has been established. It results from a significant failure on the part of the prosecution to comply with disclosure obligations. This failure has been heightened by repeated misstatements about compliance, including incorrect evidence being given to the Court.
[47] As long as the Crown, as required, provide a plan to redo the disclosure exercise in a way that removes the existing concerns, a stay of proceedings is not required and would be inappropriate given the high public interest in the prosecution.
[23] The 1 November 2017 trial date was therefore vacated (the third adjournment). The audit of disclosure directed by the Judge then took place. By early 2018 a further 600 pages of previously undisclosed information was provided.
Fourth adjournment (mistrial)
[24] Further concerns arose. This initially involved the disclosure of more material from three officers. Then, in July 2018, the defence received an unredacted version of a notebook entry from a Detective Inspector heavily involved in the original police investigation. A redacted version of this entry had been provided as part of the audit. The redacted entry disclosed that an informant had said that Mr Hall had been killed as payback for a rip off of a mob related “clan lab”. The unredacted version was only provided following queries by defence counsel about the redactions that had been made. The redaction, as defence counsel learned in July 2018, gave the name of a
person who claimed to be responsible for Mr Hall’s death. That person was part of the group with which R associated. It was therefore consistent with the defence theory of the case that associates of R were responsible for Mr Hall’s death.11
[25] The new trial date had been scheduled to commence on 8 October 2018. On the eve of this new date, a second stay application was made. This was because it had become clear from this further disclosure that the audit had not been entirely successful. In dismissing this further stay application, the Judge said:12
[3] The present case involves a formidable disclosure task as it involves three significant phases, one of which was an undercover operation undertaken by a specialist group rather than those primarily investigating the matter. That phase, as undercover work always does, required careful consideration as to what could and should be disclosed. That said, the prosecution task, however arduous, is to provide disclosure in accordance with the rules.
…
[14] It would be nice to think that the audit achieved perfection. It has not. Realistically it probably never was going to. The three recent disclosures, while I understand are aggravating to defence counsel given what has happened previously, are not particularly concerning in terms of overall confidence in disclosure. In the scheme of things, they are relatively minor.
[15] I was and am troubled by the redaction from Detective Kirby’s notebook. It is difficult to see how that could have been thought to be correct and why it was not referred to the Crown Solicitor for advice at the time. It leaves open the suggestion that those doing the redactions did not understand the law concerning disclosure. Consequently, should there be concern still about the whole exercise such as to feel unease about the fairness of the trial?
[16] Prior to this case, I doubted that disclosure issues could bring me to the point where I seriously considered staying a murder prosecution. It is an issue that should always be able to be resolved, for example by the audit. Here, the on-going issues have genuinely raised the possibility, but in the end, I am satisfied that the trial will be fair:
(a)disclosure, although too protracted, has been exhaustive;
(b)there has then been a complete audit by senior officers independent of the original disclosure exercise;
(c)it is plain police remain aware of their disclosure obligations and continue to discharge them, and to reassess as they go;
11 This information was ultimately included in a Notice of Admitted Facts for the jury.
12 R v Lyttle [2018] NZHC 2648 (footnotes omitted).
(d)defence counsel is experienced and has been assiduous in his pursuit of information.
[17] I accept that the redaction was probably the product of uncertainty over the risk of identifying the informant. I do not understand the failure to take advice as regards such a plainly important item. I am confident, however, that the police have been aware since July that it was an error and would as a consequence have disclosed any similar flawed decisions. It is noticeable they have not shirked from on-going disclosures, notwithstanding they will be aware of the criticism to follow consequent upon them.
[18] The public interest in the continuation of any murder prosecution, but especially one where there are (disputed) admissions, is very high. I take the view that the disclosure exercise as a whole, though not a model for the future, will have done the necessary job to ensure the trial is not unfair because of incorrectly withheld or not-disclosed material.
[26] The trial commenced before Simon France J and a jury in Palmerston North on 8 October 2018. Up to ten weeks was allowed in the Court’s roster for the trial. In the weekend of the first week of the trial more disclosure issues arose. A police officer realised there were pages from his police notebook that had not been disclosed. It concerned information that a person had been heard at a party saying that he had seen Mr Hall being killed, it was a drug deal gone wrong and gang members had been responsible. This information was provided to defence counsel early in the second week of the trial. It led to the Judge declaring a mistrial (the fourth adjournment).13
[27] In declaring a mistrial the Judge commenced with stating that it was “little wonder a mistrial is being discussed” when:14
After the start of the trial the defence are provided for the first time with a statement which has been in the possession of the police for six years which says that someone actually saw a person other than Mr Lyttle kill Mr Hall.
[28] The Judge considered the probative value of the information looked “quite thin” given it was second-hand hearsay. However, it was “striking that the content of the new information so well matched” the defence theory of the case.15 The defence would be prejudiced if it did not have a proper opportunity to explore this information. The Judge concluded:16
13 R v Lyttle [2018] NZHC 2689.
14 At [22].
15 At [24].
16 Footnote omitted.
[32] Section 24(d) of the New Zealand Bill of Rights Act guarantees a defendant the right to adequate time and facilities to prepare a defence. Disclosure is a key mechanism by which this right is facilitated. Failings in the disclosure process can be of varying significance and usually accommodated, but the defendant’s right guaranteed by the Bill of Rights must be protected. In my assessment, having regard to the content of the information (but not ignoring its present evidential weakness), the timing of the disclosure, the difficulties facing counsel due to repeated breaches of the disclosure obligation, a concern I then have consequent on that about the cumulative impact of those breaches on the defendant’s ability to present his defence in this trial, and the submission of Mr Stevenson concerning the amount of time he considers is required, the only possible outcome is to bring this trial to an end.
Third stay application
[29] Following the mistrial, the defence brought a third stay application. This was heard by Simon France J in March 2019. The defence contended Mr Lyttle could not have a fair trial because, in the context of the risk of a false confession in a Mr Big operation, the Police had consistently been in default on disclosure, the investigation disclosed tunnel vision by the Police and it was five years since Mr Lyttle was arrested. In dismissing the application, the Judge reviewed the history of the disclosure failings.17 He began this review by commenting:
[53] To get to the point where disclosure presently is at has been much more of a battle than it should have been. The overall police/prosecution effort has been poor by any measure. The errors have been both systemic and at times the product of bad decision making and practices by individual officers
…
[30] The Judge discussed in detail those failings under four categories. The first category was the undercover operation. The sequence was:18
(a)On 6 December 2016 defence counsel queried whether the disclosure schedule was complete in relation to the undercover operation. The officer in charge of the homicide team advised that he had made enquiries of the undercover team and there had been full disclosure.
17 R v Lyttle [2019] NZHC 1150.
18 This sequence does not include the difficulties the defence faced in obtaining the full audio and transcripts of the undercover operation. See, for example, R v Lyttle [2019] NZHC 2266 at [59].
(b)As a result of further queries from defence counsel, on 17 February 2017 the defence received 1,100 pages, mostly redacted, from the undercover operation file.
(c)Subsequently, as a result of a review of the redactions by an amicus, the Court ordered further disclosure.
(d)In December 2017, following the court-ordered audit, a significant number of texts were added to the disclosure schedule.
[31] The Judge noted that the officer in charge of the homicide operation did not have any control over the undercover operation file. He was reliant on what he was told. It appeared that some police officers had misled other officers about the existence of material believed to be confidential. There had been poor decision making throughout about the disclosure of confidential material.19
[32] The second category concerned disclosure of the L job sheet. This recorded a statement L had made to a police officer in another district on 6 March 2014. In this statement L said that: R had stolen a bucket of drugs worth $200,000 that Mr Hall had buried at the property; R then supplied this to the head of the Mongrel Mob; R could not pay back Mr Hall; R had several people involved in getting rid of Mr Hall and they took away a meth lab that Mr Hall had started. The statement had been emailed to the homicide investigation team.
[33]The sequence leading to disclosure of this statement was:
(a)On 6 October 2014, as part of general disclosure, a redacted version of the covering email was disclosed. The email referred to L’s last name. It contained no other information. The job sheet with L’s statement was not attached and was not referred to in the disclosure schedule.
19 At [59].
(b)On 21 June 2017, as a result of a Crown review of redactions, a less redacted version of the covering email was provided. The job sheet was not provided. Nor was it identified as existing but withheld.
(c)In July 2017 defence counsel requested that a search be carried out of the police information database. This produced the L job sheet.
[34] Defence counsel queried when the officer in charge and the Crown had first seen the job sheet. The Crown had not seen it before it was disclosed in July 2017. The officer in charge initially said the same thing. On 29 August 2017 the Court granted the defence’s application for an electronic footprint disclosing who had accessed the job sheet. On 30 August 2017 the officer in charge carried out a review of his records and realised he had seen the job sheet in 2014 and had sent or received eight emails to various people discussing the job sheet.
[35] The Judge found this “troubling”. The job sheet should have been found earlier. Incorrect assurances were given. It was the officer in charge of the file and of disclosure that had made these errors. The errors concerned a statement important to the defence.20
[36] The third category discussed was police notebooks. The sequence of events was as follows:
(a)In 2014 disclosure was first made.
(b)In March 2017 a further 600 pages were disclosed (following Mr Stevenson becoming defence counsel).
(c)In September 2017 a collection of 2011 job sheets and statements and records on a particular topic were disclosed for the first time.
(d)In early 2018, following the court-ordered audit, a large tranche of further disclosure was made, including almost all the notebooks of the
20 At [65].
overall officer in charge. Almost all the notebooks were redacted on the basis they contained administrative or work product. This (wrongly) included redactions of informant information.
(e)In the middle of 2018 further notebooks were disclosed. These came from two officers involved in the 2011 investigation.
(f)In October 2018 large sections of the notebooks of the officer in charge of disclosure were disclosed in the second week of the trial, leading to the mistrial.
[37]The Judge discussed the reasons for the errors and said:21
… This process has been so drawn out and so many different sources of error have been identified and addressed, by a process of elimination one would have to think the large bulk are to hand.
[38]The last category was informant information. In this category was:
(a)The L job sheet (discussed above at [32]-[35]), first disclosed in July 2017.
(b)The informant information provided around a month earlier to L’s information (discussed above at [24]), first disclosed in July 2018 in a heavily redacted form and on an incorrect basis.
(c)The double hearsay information about an eyewitness, first disclosed in October 2018 and which led to the mistrial (discussed above at [26]-[28]).
(d)During the stay application hearing in March 2019, it emerged for the first time that in late 2017 another informant gave information about Mr Hall’s death and where he was buried.
21 At [71].
[39] The Judge noted the explanation given for not disclosing the last of these matters. This explanation was that the Police had intended to look into the information, had not gotten around to it and, until they had done so, they did not want anyone else to make their own investigations. As the Judge commented, this was an incorrect decision by a senior officer in the case to suppress information.22 As the Judge also commented, the redactions in [38(b)] above were made without seeking advice from the Crown Solicitor. The Crown Solicitor directed that it be disclosed immediately as soon as she saw the content of the informant information.
[40] Overall, the Judge concluded the “problems reflect inadequate systems, indefensible decisions by individual officers, a confusion over disclosure principles and no apparent willingness to take advice.”23 The Judge considered the late disclosure of informant information was of “particular concern”.24 It was information that was most likely to assist the defence and yet there had been a consistent pattern of errors.25 He considered “there must be a real risk that there still remain items of potential significance to the defence that have not been disclosed.”26 Material not disclosed was likely to be of a similar nature to the (now disclosed) informant information, namely that Mr Hall was killed by drug associates.27 The Judge was nevertheless satisfied a fair trial was possible.
Trial proceeds in 2019
[41] Following the mistrial, a new trial date was scheduled for 16 September 2019 in Wellington. The trial proceeded before me and a jury over nine weeks. During the trial there was further material disclosed to the defence. This included ESR material and material from the search. Possibly more significantly, a defence non-party disclosure application brought against the Department of Corrections revealed information that raised serious concerns about the reliability of a prison informant who the Crown intended to call as witness. That information was recorded in emails to police officers in Whanganui. Those officers appear to have been uninvolved in the
22 At [84].
23 At [86(b)].
24 At [86(c)].
25 At [86(c)].
26 At [86].
27 At [122(a)].
Lyttle investigation and the officers in charge of the Lyttle trial were unaware of those emails. In any event, once aware of the emails, the Crown advised it would not be calling the prison informant.
[42] The trial had been moved from Palmerston North to Wellington to secure the most suitable trial date in the interests of justice.28 This caused financial difficulties for Mr Lyttle and his family. They could not afford to pay for accommodation in Wellington and the travel costs from their home in Halcombe (near Bulls). Initially, Mr Stevenson was personally funding Mr Lyttle’s accommodation pending a solution of some kind. Approaches were made to the Legal Services Agency for reimbursement of Mr Lyttle’s accommodation costs.
[43] By the beginning of week five of the trial the Legal Services Agency had declined the reimbursement claim and defence counsel could no longer continue to fund Mr Lyttle’s accommodation. Rather than bringing on for hearing the defence’s application for costs under the CPA (which was not ideal when counsel and the Court were in the middle of the trial), the Police agreed to make an ex gratia payment to fund the accommodation and travel costs. The amount paid totalled $7,300 ($6,412.12 plus GST).
The disclosure regime
[44] The power of the Court to order costs for disclosure failings forms part of the statutory disclosure regime enacted by the CDA, which came into force on 29 June 2009. Disclosure was seen as part of a defendant’s right to a fair trial. The Law Commission said in recommending a statutory disclosure regime:29
… without adequate disclosure, a defendant will be unable to prepare their defence properly … defendants should not be handicapped by a lack of relevant information and by an imbalance of resources available to them in preparing a case than those resources at the disposal of the State.
[45]As it was put by Simon France J:30
28 R v Lyttle HC Whanganui CRI-2014-083-957, 24 October 2019.
29 Law Commission Criminal Prosecution (NZLC R66, 2000) at [193]; see also Law Commission
Criminal Procedure: Disclosure and Committal (NZLC R14, 1990).
30 R v Lyttle, above n 17 (footnote omitted).
[44] Identifying full disclosure as a component of a fair trial is comparatively new. Commissioner of Police v Ombudsman was the break through decision that developed the existing common law, under the auspices of the Official Information Act 1982, to set in place a regime that is now codified. The relationship between an effective disclosure regime and the ability to have a fair trial is found also in the New Zealand Bill of Rights Act 1990, in which the duty of disclosure supports the right under s 24(d) to have adequate time and facilities to prepare a defence, and has developed as part of the wider right to a fair trial under s 25(a).
[46] The statutory scheme was intended to promote efficiency in this important component of fair trial rights because the disclosure obligations would be clear. As the Law Commission said:31
A complete legislative code would provide guidance to prosecutors about their obligations to make discovery. This in turn should result in fewer cases before the court turning upon purely procedural objections. Overall efficiency of the criminal justice system will be improved by freeing up more judicial time for consideration of cases on the merits, rather than discovery and procedure.
[47]The fair trial and efficiency aims are summarised in Adams on Criminal Law
as follows:32
Principally, the rationale for disclosure stems from the right to a fair trial, with closely connected rationales including the equality of arms, the right to make a full answer and defence, avoidance of trial by ambush, and promoting the ascertainment of the truth. One by-product of effective disclosure is that it may increase the efficiency of the criminal justice system by promoting pretrial disposition of criminal proceedings, and more focussed hearings.
[48] Consistent with the Law Commission’s aims, the purpose of the CDA is “to promote fair, effective, and efficient disclosure of relevant information between the prosecution and the defence, and by non-parties, for the purposes of criminal proceedings.”33
The costs regime
[49]The application for costs is made under s 364 of the CPA. It provides:
364 Costs orders
(1)In this section,—
31 Law Commission Criminal Prosecution, above n 29, at [200].
32 Simon France (ed) Adams on Criminal Law – Criminal Disclosure (online ed, Thomson Reuters) at CD3.01.
33 Criminal Disclosure Act 2008, s 3(1).
costs order means an order under subsection (2)
procedural failure means a failure, or refusal, to comply with a requirement imposed by or under this Act or any rules of court or regulations made under it, or the Criminal Disclosure Act 2008 or any regulations made under that Act
prosecution—
(a)means any proceedings commenced by the filing of a charging document; but
(b)does not include an appeal.
(2)A court may order the defendant, the defendant’s lawyer, or the prosecutor to pay a sum in respect of any procedural failure by that person in the course of a prosecution if the court is satisfied that the failure is significant and there is no reasonable excuse for that failure.
(3)The sum must be no more than is just and reasonable in the light of the costs incurred by the court, victims, witnesses, and any other person.
(4)A costs order may be made on the court’s own motion, or on application by the defendant, the defendant’s lawyer, or the prosecutor.
(5)Before making a costs order, the court must give the person against whom it is to be made a reasonable opportunity to be heard.
(6)A costs order may be made even if the defendant has not yet been convicted, or is eventually discharged, or the charge is dismissed.
(7)The court may make more than 1 costs order against the same person in the course of the same prosecution.
(8)The court may order that some or all of the amount ordered to be paid under a costs order be paid to any person connected with the prosecution.
(9)Subsections (2) to (8) do not limit or affect the Costs in Criminal Cases Act 1967.
[50] The history and purpose of s 364 are discussed in the High Court and Court of Appeal decisions in Bublitz.34 The section was introduced as part of the major reforms to criminal procedure introduced by the CPA. Its primary purpose is to “encourage compliance with the CPA and the Criminal Disclosure Act, to avoid defaults which may delay or derail a trial, thereby ensuring the efficiency of the criminal justice system.”35
34 R v Bublitz [2018] NZHC 373; and Bublitz v R [2019] NZCA 379.
35 Bublitz v R, above n 34, at [35].
[51] The power is in addition to a costs order that may be made under the Costs in Criminal Cases Act 1967 (the CCCA). The CCCA allows costs orders to be made when a defendant is acquitted or a charge against a defendant is dismissed or withdrawn. An award is discretionary but key factors are whether the prosecution was reasonably and properly brought and pursued and the behaviour of the defendant.36 A costs order is intended to compensate the defendant.37
[52] In contrast, under the CPA a costs order is available regardless of the defendant’s guilt or innocence on the charge. The jurisdiction is available where there has been a significant procedural failure in the course of a prosecution and there is no reasonable excuse for that failure. The order is primarily intended “to operate as a sanction, while providing the ability to compensate in appropriate cases.”38
[53] The amount of an award is to be no more than is just and reasonable in light of the costs incurred by the Court, victims and any other person.39 The latter includes the prosecutor and the defence, but the default position is that costs are paid to the Court.40 Wasted costs of the Court, victims, witnesses and parties are relevant to fixing the award.41 Whether an award equal to the costs incurred “could ever be warranted as the appropriate punitive response to ensure a fair trial” has been left for consideration in a case where it needs to be determined.42
[54] The Court is to have regard to all relevant factors in determining what is a just and reasonable award. This includes “the extent of non-compliance, its effect on the administration of justice and also upon the participants in the proceeding.”43 The weight given to the relevant factors depends on “the particular circumstances of the case assessed against the purpose of incentivising compliance with the parties’ procedural obligations.”44 The just and reasonable test emphasises that there is
36 See the statutory criteria in s 5 of the Costs in Criminal Cases Act 1967; and R v Margaritis HC Christchurch T66/88, 15 July 1989 discussed in R v Bublitz, above n 34, at [24]-[28].
37 R v Bublitz, above n 34, at [40].
38 Bublitz v R, above n 34, at [34] and see [44].
39 Criminal Procedure Act 2011, s 364(3).
40 Bublitz v R, above n 34, at [41]-[42].
41 At [44].
42 At [50].
43 At [44].
44 At [44].
flexibility to respond to the justice of the case.45 The ultimate question is “whether the sanction provides an appropriate incentive to ensure future compliance both in the instant proceeding and more generally.”46
[55] Bublitz provides the only relevant example of an order for costs against the prosecutor. The case involved charges brought by the Financial Markets Authority (FMA) against a number of defendants arising from the collapse of two finance companies. There were disclosure difficulties in the early stages of the proceeding and this was a factor in a decision to adjourn an earlier fixture date.47 However, these earlier difficulties were not the basis for the order. Rather, when the long-running trial was in its eighth month, the Crown provided the defence with a list of documents that identified 14,619 documents that should have been provided to the defence.48 By this time the Crown had closed its case, and Mr Bublitz had opened his case, called three witnesses and was about to close his case. The remaining three defendants had not yet been called upon to make their elections. This late disclosure led to the trial Judge aborting the trial nine months after it had commenced and was the basis for the application for costs.
[56] Three of the four defendants (Mr Bublitz, Mr Blackwood and Mr Morrison) brought the application. The fourth defendant (Mr McKay) did not pursue an application. The position of each defendant was different:
(a)Mr Bublitz had largely personally funded his defence. He sought costs of $1,284,493.57 for his wasted costs (inclusive of the amount paid by the Legal Aid Services).49 Mr Bublitz acknowledged the amount paid by Legal Aid Services, now part of the Ministry of Justice, was a debt due and he would have to pay that debt from any award made.
45 At [48].
46 At [48].
47 R v Bublitz [2017] NZHC 1059 at [9].48 The trial commenced on 8 August 2016. The list was provided on 23 March 2017. The trial was aborted on 10 May 2017 because of this late disclosure. The trial was originally scheduled to take 12 weeks. It had run over this allocation by a significant margin by the time of this disclosure failure.
49 Of this sum he sought an order of $200,000 under the CCCA and the balance under s 364 of the CPA. The Judge made no award to Mr Bublitz under the CCCA. He considered an award under that Act would be premature when the majority of the charges that represented the gravamen of the Crown case against him remained to be determined.
(b)Mr Blackwood’s defence had been funded by Legal Aid Services throughout. He sought costs of $475,913.24 for wasted costs under s 364 of the CPA. He acknowledged any award would be payable to the Legal Aid Services and said that he had been asked to seek costs on its behalf.
(c)Mr Morrison retained private counsel for a period and after that represented himself with the assistance of stand-by counsel appointed by the Court. He sought $212,992.90 under the CCCA and the CPA.50
[57] It was common ground there had been a significant procedural failure for which an award under the CPA should be made. The High Court had to determine against whom the order should be made and the quantum of that order.
[58] The Judge considered s 364(2) meant “the prosecutor, or prosecuting agency, responsible for the failure on a practical level, not simply the Solicitor-General because she is ultimately responsible for a prosecution.”51 The Judge said he would not rule out the possibility that in some cases it may be appropriate to make an order against the prosecutor personally. However, this was not a case where it was appropriate to do so.52
[59] The failures involved breaches of the CDA. The definition of prosecutor in that Act is “the person who is for the time being in charge of the file or files relating to a criminal proceeding”.53 The Crown’s view, as set out in the Solicitor-General’s Prosecution Guidelines, was that “the person in charge of the files is the person designated by the enforcement agency as the officer or employee responsible for the file.”54 The FMA had carried out the investigation, initiated the prosecution and was in charge of the files. The FMA was in the best position to ensure appropriate disclosure was made. The Judge concluded the costs order should be made against the FMA, as the enforcement agency with the responsibility under the CDA, to sanction
50 At the aborted trial the Crown offered no evidence against him and the charges against him were dismissed. The Judge made an award of $75,000 in Mr Morrison’s favour under the CCCA.
51 At [116].
52 At [118].
53 Criminal Disclosure Act 2008, s 6.
54 Referred to at [121].
its failure.55 There was no challenge to this conclusion on appeal and no further discussion of the issue.56
[60] As to quantum, the High Court Judge noted that the disclosure failure had been inadvertent. Effectively, it had wasted six of the nine months of the trial because the trial could have been saved with an adjournment if the disclosure had been provided within the first three months. In the Judge’s view, the costs incurred by Mr Bublitz were reasonable but an award at that level would be completely outside the realm of what Parliament intended. The Judge considered an order of $50,000 was appropriate to censure the FMA for its non-compliance. This was to be shared between the four defendants (including Mr McKay who had not made an application) and the Court equally.57
[61] The Court of Appeal upheld this award, emphasising it was a discretionary decision for the Judge. In doing so it said:
[49] We are satisfied that the Judge had regard to the significance of the breach, the significance of the resulting wasted costs, the carelessness involved, the need for deterrence, the fact that the FMA had the means to pay such an award and the need for overall fairness. The civil costs scale we do not consider relevant to quantum under s 364. We do not consider that the Judge made any error of principle in his consideration of these issues. It is true that this Court might have made a more substantial order, given the scale of the FMA’s neglect and to reflect the fact that, at the time of hearing, it appeared that Mr Bublitz would be unable to be represented by his preferred counsel at his retrial.
[50] The question for this Court is whether, in fixing the quantum under s 364 (a discretionary decision), the Judge erred in law, took account of irrelevant considerations, failed to take account of a relevant consideration or was plainly wrong. At the end of the day we are not persuaded the Judge erred in principle in setting a more modest sanction, and that is the end of the matter.
…
55 At [122].
56 Bublitz v R, above n 34, at [15].
57 Effectively this meant that Mr Morrison received $10,000 (plus his award under the CCCA),
$20,000 went to the Ministry of Justice in reduction of the debts due of Mr Bublitz and Mr Blackwood, $10,000 was paid to Mr McKay (or the Ministry of Justice if he was legally aided), and $10,000 went to the Ministry of Justice (the Court).
My assessment
[62] The submissions for Mr Lyttle address the purpose of incentivising compliance in the future as referred to in Bublitz. The submissions provide material from the United States relating to endemic disclosure violations which have been a leading cause of miscarriages of justice. The Chief Judge of the United States of Appeals for the Ninth Circuit has said it is only judges that can put a stop to this through better enforcement of disclosure obligations.58
[63] The submissions also provide material about significant disclosure problems in the United Kingdom. Those problems prompted reviews in 2011, 2012, 2014, 2015 and 2017, as well as the Report of the House of Commons Justice Committee published in July 2018 and the Attorney-General’s Office “Review of the efficiency and effectiveness of disclosure in the criminal justice system” published in November 2018.59
[64] The House of Commons report referred to systemic issues which had allowed disclosure failures to continue for too long. The Committee did not propose any fundamental change to the legislation, as the failings were in the application of the principles by police officers on the ground. Its view was that a shift in culture was needed towards reviewing disclosure as a core justice duty, and not as an administrative add-on. The right skills and technology to review large volumes of material that were now routinely collected by the Police were also needed, as well as having clear guidelines on handling sensitive material.
[65] Counsel for Mr Lyttle submits disclosure failings in this country are also commonplace. He provides a number of examples where disclosure failings have led to trial adjournments or the quashing of convictions. He submits there is an obdurate refusal to confront the systemic problems here and the failure to do so leads to miscarriages of justice and the undermining of public confidence in the rule of law.
58 United States v Olsen 737 F 3d 625 (9th Cir 2013).
59 House of Commons Justice Committee Disclosure of Evidence in Criminal Cases (HC859, 2018) at 11; and Attorney-General’s Office Review of the efficiency and effectiveness of disclosure in the Criminal Justice System (CM9735, 2018).
[66] These submissions provide background context. However, the Court is seized with a particular application. The Court’s role is to consider the award that is just and reasonable in the circumstances of this case and which will encourage compliance in the future. To the extent an order is forward looking, it is with reference to the circumstances of the case.
[67] As to those circumstances, counsel for Mr Lyttle refers to the conclusions of the Judge who was principally involved in addressing them. I have set out those conclusions above. There is no doubt the Judge was very concerned about the failings. They had reached the point where they had “genuinely raised the possibility” that a murder charge might be stayed. In the end the Judge was not satisfied he should stay the charge, but the genuine possibility of that outcome indicates the seriousness of the failures in this case.
[68]Factors that made the failures serious were:
(a)they were repeated failures that repeatedly required the Court’s involvement;
(b)assurances were given to the Court that were wrong;
(c)material from a number of sources that was obviously relevant to the defence was withheld;
(d)those withholding material and making redactions to this obviously relevant material apparently did not understand their obligations and apparently did not seek advice about them;
(e)senior officers were involved in these errors;
(f)even when the Court put in place an audit process, errors continued to be made;
(g)the problems reflected inadequate systems;
(h)the ongoing failures and their nature meant there was still likely to be other material of potential significance to the defence that was not disclosed; and
(i)they occurred in the context of a murder charge with the prospect of a sentence of life imprisonment if convicted.
[69] As it is put in R v Askow, “[t]he time awaiting trial must be exquisite agony for accused persons and their immediate family”.60 The Police had material from a variety of sources that was consistent with Mr Lyttle’s claim that he was innocent and that someone in the drug world had killed Mr Hall. Mr Lyttle received this information because of the efforts of his counsel but it was a lengthy process with scheduled trial dates having to be vacated. If that was not stressful enough for Mr Lyttle and his wife and three children, when the trial finally got underway for the first time, it collapsed because there was more non-disclosed material that was obviously relevant to the defence. The delays to trial were also stressful for Mr Hall’s family.61 The families involved had to wait another year for the trial to take place.
[70] The Crown submits there should be no order made in light of the amount the Police have already paid for Mr Lyttle’s accommodation and travel costs and for photocopying materials for the defence during the trial. The Crown says this is already more than Mr Bublitz received. I do not accept this submission for a number of reasons.
[71] First, the photocopying concerns manually edited audio transcripts for the Police to alter and print as defence exhibits. The cost for this work was $2,380 plus GST. There is some background to this. Most relevantly, the transcripts were prepared by the Police at their insistence and a number were provided close to trial. Because of this, defence counsel had to check some of the transcripts against the audio during the trial (some time during the trial was allowed for this). The defence was entitled to have any identified errors changed. Once that had occurred, defence counsel possibly
60 R v Askow [1990] 2 SCR 1199 per Corrie J at 1219.
61 Mr Hall’s mother referred to this in her victim impact statement at sentencing.
could have prepared the defence exhibits for the jury. But it was not unreasonable for the Police to do so for the smooth running of the trial.
[72] Secondly, the more relevant comparison is between the $50,000 global order in Bublitz (rather than the amount the Legal Services Agency received in discharge of Mr Bublitz’s debt) and the amount that should be ordered here. That global order was the sanction for the prosecutor’s failure in that proceeding. The question is what sanction (by way of a costs order) should be awarded for the prosecutor’s failures in this proceeding. As is made clear in Bublitz, an order is primarily punitive rather than compensatory.
[73] Thirdly, I consider the nature and seriousness of the disclosure failures in this case and the consequences for the parties associated with the delays caused by the failures are more serious in this case than in Bublitz. There was essentially a single instance of late disclosure in Bublitz as compared with the multiple instances of late disclosure in this case. The late disclosure by the FMA did not come after multiple applications to the Court, assurances made to the Court and a court-ordered audit. Moreover, the late disclosure in Bublitz occurred in the context of a fraud case where the defendants, if found guilty, were never going to be subject to a prison sentence of many years, let alone a sentence of life imprisonment.62
[74] The aggravating feature of the failure in Bublitz was that the new disclosure caused a trial to collapse after it had been underway for nine months. Although the present case involved a collapsed trial after just one week (in October 2018), there was a nearly two and a half year delay between when the trial should have taken place (May 2017) and when it finally did take place (September 2019). This delay was particularly aggravating because it occurred against the backdrop of an already delayed trial while the controversial undercover technique was tested in the courts.
[75] The wasted costs in Bublitz were high. But they were also high here. Defence counsel’s costs because of the disclosure failings are conservatively estimated to be
62 Mr McKay was sentenced to 12 months’ home detention; Mr Blackwood was acquitted on appeal; and Mr Bublitz’s sentence was reduced on appeal to 11 months’ home detention: R v Bublitz [2019] NZCA 364.
$250,000. These were met by the Legal Services Agency. In addition to these direct costs, significant court time was required in resolving the issues.
[76] The Crown submits the unique context of the investigation involved in this case helps to explain why the Police fell short. After the initial investigation in 2011, the file fell dormant for three years. By the time of Mr Lyttle’s arrest, police practice around electronic record-keeping had changed. It was not until 2016 that the systemic disclosure issues were identified, by which time the file had been through three Crown Solicitors, multiple changes in police personnel, and changes to the police electronic file system. The Crown submits that, with these three phases to the investigation, file management was unusually complicated. It meant there was not a single, stable investigation personnel ordinarily at the heart of a murder investigation. The Crown notes that, despite the difficulties, the Police conscientiously provided further disclosure whenever they became aware of further documents knowing they faced further criticism from the Court.
[77] I accept there were challenges for the Police. I accept the need for deterrence would be greater if the Police had acted deliberately improperly. This was not found to be the case here. However, it is essential that the Police have proper systems in place to deal with the challenges that disclosure can present in a complicated and long running investigation. A costs order is intended in part to be forward-looking to deter future similar issues from occurring.
[78] The Crown submits a costs order is not necessary for deterrence here. It submits police attitudes towards disclosure have evolved significantly in the past 10 years. It also submits that the Police have responded to the Court’s criticism of their practices and decision making and specific changes have been made as a result of this case. The Court heard evidence about this from Detective Inspector Kirby at the hearing of the third stay application that followed the mistrial.63 The Detective Inspector explained that, when the CDA first came into effect, the Police would interpret what was relevant. He said that progressively this has changed. Now the
63 R v Lyttle, above n 17.
approach is full disclosure without a police interpretation as to whether the information is relevant.
[79] The Detective Inspector also said there had been structural changes made. Specifically:
(a)notebooks for serious crime are all pre-numbered and these are allocated to staff;
(b)when staff leave, there is a process that requires the notebooks to be handed in to the file manager;
(c)this process also involves identifying whether the officer has anything else to hand in (for example flash drives);
(d)the Police have a new electronic investigative management toolkit and training for the Police CIB on this toolkit commenced in February 2019;
(e)senior officers have met with the Crown; and
(f)lessons learned from this case have been the subject of presentations and have been included in a development course at the Police College.
[80] Time will tell whether these steps will be successful in avoiding a recurrence of the failures that occurred in this case. In my view, the important point is that the Police have taken some steps to address the problems that arose here. The order for costs should focus on the failures that occurred in this case, recognising that the Police have taken some steps intended to address the causes of these failures. If those steps prove to be ineffective, and significant failures occur in other cases, an order for costs can respond to those failures in those cases.
[81] Lastly, the Crown submits the Court should take into account that Mr Lyttle received a discount of 18 months to the minimum period of his sentence because of the delay to trial and the time spent on electronically monitored bail and a curfew. The
Crown says that the delay and associated grant of bail allowed Mr Lyttle to spend time with his family during this period. That is true, but he did so with the trial hanging over his head. He has gained something of a potential advantage by the discount to the minimum period of imprisonment. However, the costs order is intended to act as a sanction for the costs to the system and its effects on participants, not to compensate for delay directly.
[82] Overall, I consider the costs order should be set above the amount ordered in Bublitz, noting that the Court of Appeal considered the order could have been higher than it was. In light of all the relevant factors, and taking into account the amounts already paid by the Police, I consider that a just and reasonable amount is $75,000 (inclusive of the amount the Police have already paid for the accommodation and travel costs). This amount maintains proportionality to the additional costs incurred in the defence (30 per cent of the conservatively estimated additional costs). It reflects the seriousness of the repeated failures, the repeated need for court intervention, the incorrect assurances given to the Court, and the poor decision making involved. It reflects that these failings occurred in the context of a murder charge and seriously delayed the trial. It recognises that the errors were not deliberately made and the Police disclosed information as the errors were discovered, and that some steps have been taken to the address the errors that occurred.
Whom the award should be made against
[83] Defence counsel submit the current Whanganui Crown Solicitor should be ordered to pay half of the award. He submits it was obvious from an early stage that Police were failing in their disclosure obligations and he asked the Crown to take control of it. He submits the Court was critical of the Crown as well as the Police.
[84] I accept the Crown’s submission that the order is to be made against the prosecutor responsible for the procedural failure on a practical level. It can be assumed that the Crown Solicitor would have told the Police of the need to provide all relevant information and, regardless, the various court decisions made this clear. The Crown Solicitor was dependent on the Police to find all the relevant material and to hand it over. On a practical level it is difficult to see what more she might have done, bearing
in mind that disclosure errors continued despite assurances to the Court, the concerns expressed by the Court and the court-ordered audit.
[85] Mr Stevenson refers to an email to the Crown Solicitor dated 7 December 2016 in which he said:
Please take control of the disclosure obligations: I sense the complete [UC/Mr Big] Scenario File has not been considered as part of the police disclosure file…
[86] In fact, the correspondence suggests the Crown Solicitor was effective to some degree in following up this enquiry despite having only recently been appointed to the role and coming into this matter when she did. Corrected audio transcripts were provided on 16 February 2017 and 1,100 pages, mostly related to the undercover operation, were provided on 17 February 2017, albeit mostly redacted. The Crown Solicitor accepted this material had not been provided earlier and should have been. An amicus report was available soon after this and made recommendations for further disclosure. It is also apparent, from the correspondence referred to by defence counsel, that the Crown Solicitor carried out a redactions review in June 2017 and this led to further disclosure in June 2017. When the redacted notebook pages were provided in December 2018 following the audit, the Crown agreed, at defence counsel’s request, to review the redactions and this led to further disclosure in July 2018.
[87] The Court’s concerns were, in my view, with disclosure errors made by the Police. I conclude there is no proper basis for any part of the order to be made against the Whanganui Crown Solicitor.
Whom the award should be made to
[88] If the order is made to Mr Lyttle, it will be entirely absorbed by his legal aid debt. Defence counsel submits the costs order should be made to Mr Lyttle’s family. They have been closely connected and terribly impacted by the prosecution and the years of delay caused by the disclosure failings.
[89] The Crown submits the proceeds of a costs order should be retained by the Ministry of Justice or paid into the consolidated fund unless there is some other order
made. Although the Court may direct that all or some part of an order may be paid to a person affected by a procedural failure, the starting point is that a party is not entitled to an award as of right. The Crown submits that there needs to be special circumstances, suggesting they ought to be paid to an affected person.
[90] I consider the appropriate recipient of the order in this case is Mr Lyttle as the person most directly affected. Although the payment will be absorbed by the Legal Services Agency, Mr Lyttle will benefit in that his debt to the Legal Services Agency will reduce.
[91] I have considered whether a small portion of the order should be made to Mrs Lyttle. It was clear from the evidence at the trial that the Lyttle family have little money. It was an unfortunate aspect of the undercover operation that Mr Lyttle was conned into believing he would be well-paid for his assistance to the (fake) group’s “illegal” activities and put off paid work to provide this supposed assistance, while also spending time away from his family who missed him. It is also clear that the Lyttles are a close-knit family and they have suffered the anguish of a long-delayed trial against this unusual background. I recognise that the Hall family also suffered from the delays.
[92] On balance, I do not think it is fair to distinguish between the Hall and the Lyttle families and make an award to one but not the other, absent any additional costs incurred by the Lyttle family directly because of the aborted first trial in Palmerston North or its transfer to Wellington. I reserve leave for Mrs Lyttle to provide evidence of any financial costs incurred (in addition to the accommodation and travel costs) because of the aborted Palmerston North trial and the later Wellington trial. I will then consider whether a portion of the $75,000 should be paid directly to her to reimburse her for these additional costs. She has 28 days to do so, subject to any extension the Court may grant to this period.
Result
[93]The application is granted. An order is made that the New Zealand Police pay
$75,000 less the sum already paid for the Lyttle family’s accommodation and travel costs during the Wellington trial. The order is made in Mr Lyttle’s favour to be applied
to the Legal Services Agency in reduction of his debt subject to any order that may be made in Mrs Lyttle’s favour. Leave is reserved for Mrs Lyttle to provide evidence of any additional financial costs as discussed in [92] above within 28 days (or such further period as the Court may allow).
Mallon J
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