Lyttelton v Police [2016] NZHC 22 (26 January 2016)

Last Updated: 3 August 2019

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE, UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2015-404-889 [2016] NZHC 22

UNDER	the Judicature Amendment Act 1972
BETWEEN	MARTIN VICTOR LYTTELTON Applicant
AND	THE NEW ZEALAND POLICE First Respondent DEPARTMENT OF CORRECTIONS Second Respondent
AND	MINTER ELLISON RUDD WATTS Interested Party

Hearing:	28 October 2015
Appearances:	Applicant in person R McCoubrey and K Lawson-Bradshaw for first and second respondents S Grieve QC for interested party
Judgment:	26 January 2016

JUDGMENT OF KATZ J

This judgment was delivered by me on 26 January 2016 at 3:00pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors: Meredith Connell, Auckland

Gilbert/Walker, Auckland Counsel: S Grieve QC, Auckland

Copy to: M V Lyttelton (Applicant)

LYTTELTON v NEW ZEALAND POLICE & ORS [2016] NZHC 22 [26 January 2016]

Introduction

[1] Martin Lyttelton seeks judicial review of certain decisions made by the New Zealand Police and the Department of Corrections. The relevant decisions were made while Mr Lyttelton was on parole, having served a term of imprisonment for the attempted murder of his former business partner and inflicting grievous bodily harm on his former business partner’s wife.

[2] One of the standard release conditions of Mr Lyttelton’s parole was that:¹

The offender must not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, directed the offender not to associate.

[3] Pursuant to that condition, Mr Lyttelton was directed by the Department of Corrections not to associate with his former lawyers, due to concerns that he might pose a risk to their safety. Mr Lyttelton claims that:

(a) Corrections’ decision to make the non-association direction was made in a way that was procedurally unfair.

(b) Both the Police and/or Corrections acted for an improper purpose and, in the case of the Police, were biased.

(c) The Police acted unlawfully in sharing information (some of which was privileged) with Corrections.

[4] I will address each of these issues in turn, after first setting out the relevant factual background.

¹ Imposed by statute pursuant to s 14(1)(h) of the Parole Act 2002.

Factual background

The events giving rise to the charges²

[5] Mr Lyttelton was involved in a bitter and long-running dispute with his former business partner, Richard Ord. In March 2008 Mr Lyttelton suffered what, in his view, was a serious setback in his legal proceedings against Mr Ord. At about 9:15 am on 10 April 2008 Mr Lyttelton left home in his car, taking with him a shotgun, a box of cartridges and a hunting knife. He went to Mr Ord’s home and entered via the garage. Mr Ord and his partner, Ms Fenton, were in their home office upstairs. They saw Mr Lyttelton climbing the stairs and shut the office door. Ms Fenton leaned on it to try and keep Mr Lyttelton out, while Mr Ord telephoned the police.

[6] Mr Lyttelton shot through the door in an attempt to gain entry to the office. Ms Fenton was hit in the leg, causing severe trauma and major damage to her femoral artery, which was life threatening. Mr Lyttelton reloaded his shotgun and again tried to get into the office. Mr Ord opened the door, causing Mr Lyttelton to stumble into the room. Mr Ord then seized him from behind and a struggle ensued. Mr Ord was able to stop Mr Lyttelton pointing the gun at him or Ms Fenton, although Mr Lyttelton did fire a second shot, hitting the wall. Mr Ord eventually wrestled the gun from Mr Lyttelton. Mr Lyttelton then pulled out his hunting knife and tried to stab Mr Ord in the stomach, cutting Mr Ord’s hands in the process.

[7] Eventually Mr Ord was able to subdue Mr Lyttelton and the police arrived. Mr Lyttelton was initially charged with two counts of attempted murder and one count of aggravated burglary.

[8] At the time of these events, Mr Lyttelton and his various business interests were clients of Minter Ellison Rudd Watts (“Minter Ellison”). That firm engaged Paul Davison QC³ to represent Mr Lyttelton in relation to the criminal charges. A Minter Ellison partner, Aaron Lloyd, was the instructing solicitor. Ultimately the matter did

2. This summary is taken in part from the Court of Appeal’s judgment in Lyttelton v R [2014] NZCA 638.
3. Now Justice Davison, following his recent appointment to the High Court Bench. I will refer to him as Mr Davison in this judgment, however, as he was at the time of the relevant events.

not proceed to trial, however, as Mr Lyttelton pleaded guilty to the attempted murder of Mr Ord and a reduced charge of inflicting grievous bodily harm on Ms Fenton.

[9] On 31 March 2010 Wylie J sentenced Mr Lyttelton to 5 years and 11 months imprisonment. On 2 May 2011 Mr Lyttelton was released on parole. His term of parole concluded on 12 March 2014.

Mr Lyttelton’s conviction appeal

[10] Mr Lyttelton filed an appeal against his convictions in December 2012. He represented himself at the Court of Appeal hearing in November 2014. Mr Lyttelton did not dispute that the relevant events had occurred. Rather, he argued (amongst other things) that he had pleaded guilty in the mistaken belief that, in the sentencing context, he would be entitled to try and prove at a disputed facts hearing that he did not have the requisite intent to either attempt to murder Mr Ord, or inflict grievous bodily harm on his wife, at the time of the offending.

[11] On 19 December 2014 the Court of Appeal granted Mr Lyttelton’s appeal and overturned his conviction. The Court rejected Mr Lyttelton’s claim that he had been negligently advised on the issue of intent. On the contrary, it found that:

Mr Davison explained to Mr Lyttelton, not once but repeatedly, that to plead guilty was to admit the intent inherent in the charge, and specifically, that to plead guilty to attempted murder was to admit the intent to kill Mr Ord. Indeed, it is not in dispute that he gave such advice.

[12] Nevertheless, although his counsel had advised him correctly, the Court found that Mr Lyttelton entered his pleas in the mistaken belief that he could later deny intent at a sentencing hearing. The Court noted that the documentary record contained indications that Mr Lyttelton understood the implications of pleading guilty, but insisted on pleading guilty regardless. It concluded, however, that his “persistent wrongheadedness” was attributable to his mental state at the time of entering his pleas. Although he was fit to stand trial, he was nevertheless impaired. The passage of time, or perhaps an improvement in his mental health, had resulted in a “pre-sentencing epiphany”. As a result, a pre-trial application to change his plea from guilty to not guilty may have met with success.
[13] Although the Court of Appeal did not consider Mr Lyttelton’s proposed defence of lack of intent to be strong, it could not be excluded that a jury might accept it. The convictions were accordingly overturned and a re-trial ordered. That trial is due to take place in March 2016.

The making of the non-association direction

[14] Meanwhile, following his release on parole on 2 May 2011 (and well prior to the Court of Appeal hearing) Mr Lyttelton wrote a number of letters and emails to his former lawyers. Mr Lyttelton was critical of aspects of his representation by Minter Ellison. Mr Lyttelton wanted to obtain copies of his files to review what had happened, and also prepare for his proposed conviction appeal.

[15] Mr Lyttelton also contacted Mr Davison during this period to seek copies of his files and also to ask a series of questions about the conduct of his defence. Mr Lyttelton was particularly concerned that he had not had an opportunity to have a disputed facts hearing prior to being sentenced.

[16] On 4 July 2012, after Mr Lyttelton had been corresponding with his former lawyers for about eight months or so, his wife emailed Mr Davison expressing some concern and seeking an urgent meeting. Her email stated, amongst other things, that:

It is very important for us to meet urgently to discuss matters, including the role that Brian and I played with you in determining Martin’s defence strategy, in order that Martin does not over focus on all of this. I want Martin to be able to move on as rapidly as possible.

[17] Mr Lyttelton’s wife and Mr Davison were obviously both well aware that Mr Lyttelton’s attack on Mr Ord and Ms Fenton had occurred in a context where he had become obsessed with Mr Ord and his long running legal dispute with him, with catastrophic consequences. Any indication that he was again becoming “over focussed”, or exhibiting signs of obsessive behaviour, was therefore understandably a matter of some concern.

[18] The following week, on 10 July 2012, Mr Davison contacted Detective Vanessa Cook, who had been the officer in charge of the criminal prosecution. He expressed concern to Detective Cook about Mr Lyttelton’s behaviour. He told her that
Mr Lyttelton had recently been writing to a number of people, including himself, expressing strong dissatisfaction with the legal process and holding a number of people (including his former business partner, his solicitors, and his counsel) responsible for the outcome of his civil and criminal cases. Mr Davison expressed concern that Mr Lyttelton’s communications appeared to reveal a level of obsessive thinking and behaviour. He noted that at least one Minter Ellison partner, Cathy Quinn, had concerns for her personal safety.

[19] Following a discussion with her supervisor, Detective Cook put alerts on both Ms Quinn’s and Mr Davison’s residential addresses. Detective Cook then contacted Mr Lyttelton’s probation officer, Morne Botha, to raise the concerns that had been expressed to her by Mr Davison.

[20] Detective Cook subsequently had further discussions with both Mr Davison and Ms Quinn regarding their concerns. Ms Quinn was concerned that Mr Lyttelton saw her as responsible for the breakdown that ultimately led to the criminal charges. She indicated that she was afraid and believed that Mr Lyttelton was capable of harming her and her family. Based on her previous experience as the officer in charge of Mr Lyttelton’s criminal case, and her conversations with Mr Davison and Ms Quinn, Detective Cook considered that there were legitimate public safety concerns that required action.

[21] On 16 July 2012 Detective Cook met with Mr Lloyd, Ms Quinn and Mr Weenick at Minter Ellison to discuss their concerns further. In addition, both Minter Ellison and Mr Davison provided Detective Cook with copies of the correspondence that had given rise to their concerns.

[22] Mr Botha met with Mr Lyttelton on 19 July 2012 to discuss the concerns that had been raised. He advised Mr Lyttelton not to make any contact with his former lawyers for at least two weeks, while further inquiries were made. Subsequently, Mr Botha contacted both Ms Quinn and Mr Davison to hear from them directly regarding their concerns.
[23] On 20 July 2012 Mr Botha contacted Mr Lyttelton’s psychiatrist, Dr Goodwin, and advised him that the Police had expressed concerns about Mr Lyttelton’s behaviour. Mr Botha’s follow up email records that Mr Goodwin advised Mr Botha that he did not hold any “immediate concerns or safety issues re Mr Lyttelton in terms of escalating behaviour”. Mr Botha queried whether it might nonetheless be beneficial to see Mr Lyttelton sooner than the next scheduled appointment, to keep an eye on his mental state. Mr Botha’s case notes record that the particular concern with Mr Lyttelton’s correspondence was that he appeared to be becoming obsessive. This concerned people who knew of Mr Lyttelton’s history, given that he had demonstrated obsessive behaviour in the lead up to the incident that resulted in his criminal charges.

[24] On 25 July 2012 Mr Botha recorded in a file note that he had discussed with Mr Lyttelton the outcome of his inquiries with Mr Davison, Ms Quinn, Mr Weenink (another Minter Ellison partner) and Dr Goodwin. Mr Botha informed Mr Lyttelton that a written direction not to associate with his former lawyers would be prepared.

[25] On 31 July 2012 Detective Cook sent an email to Corrections’ Acting Area Manager, Colin Rose, setting out the concerns that had been raised by Minter Ellison and Mr Davison. She expressed the view that Mr Lyttelton was mentally unwell and capable of causing harm to people he had become fixated with. This email was forwarded to and discussed with other Corrections staff members, including Alastair Riach, the Assistant Regional Commissioner for the Northern Regional Office.

[26] The decision to impose a permanent non-association direction was ultimately made by Mr Riach, in conjunction with Maria McDonald, Corrections’ Assistant General Manager. Mr Riach’s evidence regarding the decision was that:

We made this decision based on Detective Cook’s concerns detailed in her email and our information from Mr Botha. We had not viewed the correspondence from Mr Lyttelton when we made this decision, and we did not consider we needed to...

It is the role of Corrections to protect public safety. It is always our paramount concern. Here we had a Detective who had been personally involved with the investigation into Mr Lyttelton, expressing her concerns about the safety of members of the public. Her concerns were based on having personally talked to the people who were afraid and her background knowledge of Mr Lyttelton.

Given Mr Lyttelton’s conviction for attempted murder and grievous bodily harm, and the circumstances of those offences, we did not want to take any risk with public safety. Therefore, we considered that the non-association direction was entirely appropriate in the circumstances.

[27] Under cross-examination by Mr Lyttelton⁴, Mr Riach (who was a very impressive witness) explained that, from his perspective, the key decision he had to make was actually whether or not to initiate a recall of Mr Lyttelton to prison, in the interests of public safety. Once he had concluded that such a course was not necessary, the sole issue was simply how to manage the risks of harm to the identified individuals, while keeping Mr Lyttelton in the community. A non-association order was seen as the appropriate mechanism. Accordingly, from Corrections’ perspective, they chose the least restrictive option to manage the identified risks, commensurate with community safety.

[28] On 2 August 2012, Corrections formally issued the non-association direction to Mr Lyttelton, in writing and in person, through Mr Botha. The direction was made with respect to several Minter Ellison partners and staff members and their immediate family members, as well as Mr Davison and his immediate family. Mr Botha informed Mr Lyttelton that the reason behind the non-association direction was public safety.

Corrections reviews the non-association direction

[29] In August 2012 Mr Lyttelton filed a Privacy Act request with the police. He also laid a complaint against Detective Cook with the Independent Police Complaints Authority (“IPCA”).

[30] On 20 August 2012 Mr Lyttelton was provided with 45 pages of redacted disclosure in response to his Privacy Act request. The complaint against Detective Cook was ultimately dismissed by the IPCA.

[31] On 3 September 2012 Mr Lyttelton complained to Corrections about the issuing of the non-association direction. Ms Cave, the Operations Director, Community Directions, was responsible for dealing with the complaint. On

4. Although cross-examination is relatively unusual in judicial review proceedings, the respondents did not oppose such a course and made their witnesses available at the hearing in the event that Mr Lyttelton wished to cross-examine them, which he did, with my leave.

10 October 2012 she met with Mr Lyttelton to discuss the non-association direction and his complaint. Mr Lyttelton said that the direction should be lifted as he was not a risk to the persons named in it, and he needed access to them to pursue an appeal against his conviction.

[32] After making further inquiries, Ms Cave met again with Mr Lyttelton on 1 November 2012. She told him that the non-association direction would not be lifted, as Corrections considered that the direction was justified on public safety grounds. She noted comments in a psychologist’s report that Mr Lyttelton’s potential to re-offend increased when he became fixated on “projects”.

[33] Mr Lyttelton was dissatisfied with this response and engaged with Corrections about his complaint further until March 2013. Mr Lyttelton informed Corrections that he intended to judicially review the direction, although these proceedings were not ultimately filed until two years later, in April 2015. By that time Mr Lyttelton had completed his term of probation.

Was the decision to make the non-association direction made in a way that was procedurally unfair?

Natural justice – the importance of context

[34] At the heart of Mr Lyttelton’s claims is his belief that he was not sufficiently consulted before the non-association direction was made, or given a proper opportunity to comment on the “complaints” made against him. If he had been so consulted, and full information of the complaints provided to him, he believes that he would have been able to allay any concerns. As a result, the non-association direction would have proved to be unnecessary. In essence, Mr Lyttelton believes that Corrections and the Police erred in their risk assessment exercise, because of their failure to properly consult with him.

[35] It is well established that the requirements of natural justice vary with the power that is exercised and the particular circumstances, including the statutory

context, in which a decision is made. In Dotcom v United States of America, the Supreme Court majority summarised the point in this way:⁵

The content of the right to natural justice, however, is always contextual. The question is what form of procedure is necessary to achieve justice without frustrating the apparent purpose of the legislation.

[36] Similarly, Winkelmann J (then Chief High Court Judge) recently observed in

Carroll v Auckland Coroner’s Court:⁶

The common law requirements of natural justice are context specific – a “flexible concept which aims to achieve across an infinite spectrum of situations both the actuality and the perception that things have been done justly and fairly”. They will vary depending upon the nature of the proceeding, the gravity of the matters at issue, and can be shaped by express statutory provision as to the procedure to be followed. In determining whether natural justice has been complied with, the courts look at the matter in the round to determine whether the process was fair.

[37] The appropriate starting point for determining the requirements of natural justice in this case is the statutory context. Unfortunately, however, the Act is silent as to what the requirements of natural justice are when a probation officer makes a decision, such as who an offender may associate with, pursuant to the standard release conditions. Nor does there appear to be any case law directly on point. The Act does, however, provide some guidance as to the requirements of natural justice when the Parole Board makes decisions regarding the release of offenders on parole, or the subsequent recall of offenders to prison. There have also been a number of judicial decisions arising in the context of such decisions, both in New Zealand and overseas.




[38] These types of decisions are not directly analogous to the decision that was made in this case. First, they are decisions made by the Parole Board, rather than an individual probation officer. Further, they are decisions that directly affect an offender’s liberty. Such decisions are therefore likely to require a higher level of natural justice than decisions that do not directly impact on an offender’s liberty. It is nevertheless helpful, in my view, to briefly consider the requirements of natural justice

⁵ Dotcom v United States of America [2014] NZSC 24, [2014] 1 NZLR 355 at [120]. See also

Daganayasi v Minister of Immigration [1980] 2 NZLR 130 (CA) at 141.

⁶ Carroll v Auckland Coroner’s Court [2013] NZHC 906, [2013] NZAR 650 at [35].

in these other contexts, while keeping in mind that the natural justice requirements in relation to day-to-day operational decisions regarding terms and conditions of parole are likely to be significantly less onerous.

Granting parole

[39] Under the Parole Act 2002 an offender who has been sentenced to more than two years in prison will become eligible to be considered for parole after one third of his or her sentence.⁷ The Parole Board holds an oral hearing to determine if an offender should be released on parole and, if so, whether any special conditions are necessary.⁸ The paramount consideration for the Parole Board when making decisions about, or in any way relating to, the release of an offender, must be the safety of the community.⁹ Other principles that must guide the Board’s decisions are:¹⁰

(a) That offenders must not be detained any longer than is consistent with the safety of the community, and that they must not be subject to release conditions that are more onerous, or last longer, than is consistent with the safety of the community.

(b) That offenders must be provided with information about decisions that concern them, and be advised how they may participate in decision- making that directly concerns them, subject to certain qualifications.

(c) That decisions must be made on the basis of all the relevant information that is available to the Board at the time.

(d) That the rights of victims are upheld, and submissions by victims are given due weight.

[40] The Act also sets out general rules about information to be given to offenders in advance of Parole Board hearings.¹¹ In particular, the Board must take all

⁷ Section 84(1).

⁸ See ss 29AA and 46 of the Parole Act 2002.

⁹ Section 7(1).

¹⁰ Section 7(2).

¹¹ Section 13.

reasonable steps to ensure that information on which it will make a decision is made available to an offender prior to the relevant hearing. This is subject to certain qualifications, including that information may be withheld from an offender if its provision would endanger the safety of any person.¹²

[41] In deciding whether or not to release an offender on parole the Board must bear in mind that an offender has no entitlement to be released on parole and the mere fact that an offender may be eligible to be considered for parole does not confer any such entitlement.¹³ The Board may direct that an offender be released on parole only if it is satisfied on reasonable grounds that the offender, if released on parole, will not pose an undue risk to the safety of the community or any person or class of persons, within the remaining term of his or her sentence.

[42] All offenders released on parole are subject to standard release conditions.¹⁴ There is no statutory requirement to consult an offender in relation to the imposition of such conditions. Rather, they are imposed automatically, by virtue of statute. The content of the standard release conditions includes such things as reporting to a probation officer when required, not moving to a new address without prior consent of a probation officer, not engaging in a prohibited occupation, not associating with specific persons, and engaging in rehabilitative and re-integrative needs assessments as required.¹⁵ As I have noted above, the standard release condition that is at issue in this case is that:¹⁶

The offender must not associate with any specified person, or with persons of any specified class, with whom the probation officer has, in writing, directed the offender not to associate.

[43] The Parole Board can also impose special conditions of release.¹⁷ In contrast to standard conditions, an offender will have the opportunity to provide input on any

¹² Section 13(3).

¹³ Section 28.

¹⁴ Parole Act 2002, s 29.

¹⁵ Section 14.

¹⁶ Section 14(1)(h).

¹⁷ Section 15.

special conditions that are proposed. Special release conditions may be imposed in order to provide for the reasonable concerns of victims of the offender, reduce the risk of re-offending by the offender, or facilitate or promote the rehabilitation and reintegration of the offender.¹⁸ The Board may suspend some, or all, of the standard release conditions if they are not compatible with any special release conditions that the Board wants to impose.¹⁹

[44] Of note, although special conditions will generally be detailed and specific in nature, standard conditions are more general in their terms. The operative detail of such conditions, such as where an offender may live, what occupation they may undertake, and who they may associate with, are left to the discretion of individual probation officers in particular cases. This provides a degree of flexibility in the ongoing management of risk during the parole period, in the interests of public safety.

[45] From this brief summary it is apparent that the Act includes a number of natural justice requirements in relation to decisions by the Parole Board as to whether or not to grant parole to an offender. These requirements include the rights for an offender to be provided with copies of relevant information, and to participate in the decision making process. An offender does not, however, have to be consulted regarding the imposition of standard release conditions. Nor does the Act specifically provide for an offender to be consulted if and when a probation officer subsequently makes any direction (for example as to who an offender may association with or where he or she may live) pursuant to the standard release conditions.

Recalling an offender to prison

[46] The Act also gives specific guidance on the process for recalling an offender to prison and sets out specific procedural requirements that apply in that context. On receiving a recall application the chairperson of the Parole Board or any panel convener must make an interim recall order in certain circumstances. These include where an offender poses an undue risk to the safety of the community or to any person

¹⁸ Section 18(2).

¹⁹ Section 18(2AA)

or class of persons, or where an offender is likely to abscond before determination of the application for recall.²⁰ When an interim recall order is made a warrant will be issued for the arrest of the offender and for them to be detained in prison pending the application for recall.²¹

[47] Although offenders can be recalled on a “without notice” basis in the first instance, they are entitled to an oral hearing prior to any final recall decision being made.²² The general rules about provision of information to offenders, set out in s 13 of the Act, also apply. In particular, the Board must take all reasonable steps to ensure that the information received by the Board on which it will make any decision relating to the offender is made available to him or her in advance of the hearing, subject to certain exceptions (including that provision of the relevant information would endanger the safety of any person),

[48] Keane J considered the requirements of natural justice in a recall context in King v Parole Board.²³ He held that a parolee facing an application for recall to prison has the right to natural justice secured by s 27 of the New Zealand Bill of Rights Act.²⁴ However, the right was a limited one. In particular, there was no requirement to obtain proof of disputed facts to any particular standard, or to hear evidence, or to allow that evidence to be tested by cross-examination. The Board can receive any material under the Act, with no regard to whether it would be admissible or inadmissible in a court.²⁵ Ultimately, the overall assessment must consider whether “the Board's decision can be defended as reasonable”.²⁶

The making of the non-association direction in this case

[49] As I have noted above, the Act does not set out any specific procedural requirements for the making of decisions by parole officers pursuant to general conditions of release. The starting point, however, must be that the reasons for any such decisions must be consistent with the purposes of the Act. These include, as a

²⁰ Section 62.

²¹ Section 63.

²² Section 65.

²³ King v Parole Board [2007] NZHC 1596; (2007) 22 CRNZ 917, [2007] NZAR 289 (HC).

²⁴ King v Parole Board, above n 23, at [16].

²⁵ King v Parole Board, above n 23, at [27].

²⁶ King v Parole Board, above n 23, at [27].

paramount consideration, the need to protect the safety of the community or any particular person or class of persons.

[50] Further, it is relevant, in my view, that these types of operational or day-to-day decisions do not, in themselves, involve any deprivation of liberty. As Craig J observed in the Canadian case of Conroy v R:²⁷

... the parolee does not enjoy “liberty” in the sense that that word is commonly understood. The parolee enjoys instead a very real, but none the less conditional or qualified right or privilege to remain free of detention or custody. The imposition of a further condition ... does not detain a parolee or return him to custody, and the parolee remains free “to resume [his] activities as a citizen at large in the community under supervision”.

[51] The natural justice requirements that apply to operational decisions by parole officers as to the implementation of standard conditions of release will necessarily be less onerous (and less formal) than those that apply in the context of an initial decision to release an offender on parole, or a subsequent decision to recall them. Nevertheless, decisions restricting where a person can live, what type of work they can do, and who they may associate with, clearly have the potential to very significantly impact on a person’s daily life. As a result, some degree of natural justice in the decision making process is clearly appropriate. What is required will vary from case to case, however, taking into account that community safety, or the safety of any person or class of persons, must be the paramount consideration.

[52] For example, where a direction is made by a probation officer in response to a direct risk of imminent harm to a specific person, the requirements of natural justice are likely to be fairly minimal, at least in the first instance. In such circumstances any opportunity to be heard may well need to be reserved for a later stage, when the decision can be reviewed in light of any further relevant information. This is similar to what occurs when an interim decision is made to recall a person to prison, without notice.

[53] On the other hand, directions that do not involve an imminent risk of harm to identified persons, such as (usually) decisions as to where someone can work or live,

²⁷ Conroy v R 42 OR (2d) 342 (ONCJ) at [16].

will generally be more amenable to a degree of advance consultation with an affected person. Ultimately, however, it must always be kept in mind that parole officers are tasked with making difficult operational decisions regarding parole conditions on a daily basis, with public safety as the paramount consideration. The requirements of natural justice in any given case must reflect this practical reality.

[54] Keane J’s observation in King that there is no requirement to obtain proof of disputed facts to any particular standard is, in my view, equally applicable in the present context. There is no restriction under the Act on the type of information a probation officer may take into account in their day to day management of offenders. Probation officers must be able to receive and take into account any potentially relevant material, without regard to whether it would be admissible in a court of law. Given that community safety is paramount, they should err on the side of caution in their assessment of such material. Similarly, as with the Parole Board itself, there can be no requirement to disclose such information to offenders if it would put the safety of a person (including the victim) at risk.

[55] Taking all of these matters into account, was the process that Corrections followed in this case procedurally fair, in all the circumstances? I am satisfied that it was, for the following reasons.




[56] First, Corrections informed Mr Lyttelton of the substance of the concerns that had been raised by or on behalf of his former lawyers, and gave him an opportunity to comment on those allegations. In particular his probation officer, Mr Botha, met or communicated with Mr Lyttelton regarding the concerns on several occasions prior to the final decision being made. Specifically:

(a) On 19 July 2012 Mr Botha informed Detective Cook that he had seen Mr Lyttelton that morning and had “had a good long discussion re the situation surrounding the matter between him and Minter Ellison”. Mr Botha reported that he had told Mr Lyttelton to stop any further
correspondence for the next two weeks, until he had spoken to the parties concerned.

(b) On 20 July 2012, Mr Botha spoke to both Ms Quinn and Mr Davison regarding their concerns, following which he called Mr Lyttelton to advise him of those discussions. Mr Lyttelton responded in some detail by email the same day. In that email he made many of the same points he has made in these proceedings, including that:

(i) He believed there had been a breach of lawyer/client confidentiality.

(ii) He (and his wife) were both “clear in our view that we have acted appropriately in our dealings with [Minter Ellison], Mark Weenink, and with Paul Davison QC”.

(iii) That he had serious concerns with the conduct of his defence and of Minter Ellison more generally, and that it was entirely appropriate for him to raise those issues with Minter Ellison.

(iv) That he had kept Mr Botha informed of his correspondence throughout.

(v) That the complaints were false and malicious.

(c) On 25 July 2012, Mr Botha recorded in a file note that he had met with Mr Lyttelton and gave him feedback about his enquiries with Mr Davison, Mr Weenick, Ms Quinn and Dr Goodwin. Mr Botha notified Mr Lyttelton on that occasion that he would be preparing a formal written direction not to associate with these people.

[57] It is apparent from this sequence of events that, prior to the non-association order being made on 31 July 2015, the substance of the concerns that had been raised by Minter Ellison and Mr Davison were squarely put to Mr Lyttelton. He was given an opportunity to respond and did so, strenuously challenging that the concerns had any
substance and putting his own position squarely on the record. Even with the benefit of three further years to reflect on matters, and the benefit of full documentary disclosure, the concerns raised by Mr Lyttelton in these proceedings are not significantly different to those he advanced in July 2012. To the extent that some “new” matters were raised before me, such as that Mr Lytteltton’s psychiatrist was not unduly concerned, that was a matter known to Corrections at the relevant time.

[58] Mr Botha, and ultimately Mr Riach, concluded that a non-association order was necessary, in the interests of public safety (or more particularly, the safety of the persons specified in the non-association order). I am satisfied that the information that Corrections had before it at the time, which was discussed in substance with Mr Lyttelton, was sufficient to enable Mr Riach to properly determine that a non-association direction was appropriate in all the circumstances. I accept Mr Riach’s evidence that his focus was on the least restrictive outcome commensurate with public safety, which he concluded was the imposition of a non-association direction rather than a recall to prison.

[59] Further, the subsequent review process gave Mr Lyttelton a further opportunity to put forward any additional information that he believed to be relevant. He took full advantage of that opportunity, but was ultimately unable to persuade Corrections that their original decision was wrong.

[60] Mr Lyttelton’s personal view that none of those involved had anything to fear from him may well have been correct. The practical reality, however, is that his former legal advisers, or at least some of them, were fearful of him. They were concerned at the tone of his communications. They were intimately aware of the details of Mr Lyttelton’s previous offending and were concerned that he was exhibiting the same types of behaviour, including a tendency to obsessiveness, that had preceded that offending. Their concerns were genuine. Indeed they first raised them directly with Mr Lyttelton’s psychiatrist, Dr Goodwin. Risk assessment is an inherently difficult exercise, but ultimately it was appropriate for Corrections to err on the side of caution, in the interests of public safety.
[61] Nor do I accept Mr Lyttelton’s submission that there were failures in natural justice through Detective Cook not informing him fully of the complaints that had been made and seeking his response. The police are not required to notify persons of any complaints received about them or seek their views in relation to them, unless they feel it is appropriate or necessary to do so as part of their investigations. Ultimately, however, no criminal charges were ever laid against Mr Lyttelton. Rather, Detective Cook brought the matter to the attention of Mr Lyttelton’s probation officer and he engaged with Mr Lyttelton regarding the substance of the complaints. There was nothing improper in this course.

Did the Police and/or Corrections act for an improper purpose?

[62] Mr Lyttelton alleged that the non-association direction was a collateral attack on his appeal against his conviction to the Court of Appeal. This would appear to be an assertion that the direction was made for an improper purpose.

[63] I accept Mr McCoubrey’s submission that there is no evidence that Corrections or the Police were concerned with Mr Lyttelton’s conviction appeal or that the direction was imposed in order to undermine Mr Lyttelton’s ability to progress that appeal. On the contrary, all of the evidence points to the decision to impose the non- association direction being based solely on the perceived risk to the personal safety of the persons named in the direction.

Did the Police act unlawfully in using privileged information and sharing information (including the privileged information) with Corrections?

[64] Mr Lyttelton asserts that some or all of the correspondence that Minter Ellison provided to the Police was privileged, and that it was wrong of the Police to consider or rely on such information for any purpose, including the protection of public safety. Further it was wrong of the Police to share information (including the privileged information) with Corrections.

[65] Minter Ellison (who were represented before me, as an interested party) submitted that only one of the relevant documents was privileged, as the rest had come into existence well after Mr Lyttelton had ceased to be Minter Ellison’s client. Further,
Mr Lyttelton’s emails to the firm were not sent for the purpose of obtaining the firm’s legal advice, but rather to ask for his files and to complain about the firm.

[66] To the extent that any documents were privileged and/or confidential, Minter Ellison submitted that they were justified in disclosing them pursuant to rr 8.1, 8.2 and
8.3 of the Lawyers and Conveyancers Act (Lawyers: Conduct and Client Care) Rules 2008. In particular, r 8.2(b) provides that a lawyer must disclose confidential information where the lawyer reasonably believes that disclosure is necessary to prevent a serious risk to the health or safety of any person. Minter Ellison noted that, prior to disclosing the documents to Dr Goodwin on 22 June 2012 he had confirmed that the circumstances envisaged by r 8.2(b) existed. In Minter Ellison’s view those circumstances still existed when they forwarded the documents to Detective Cook on 17 July 2012.

[67] I am satisfied that there was nothing improper in Minter Ellison disclosing the relevant documents to the Police. Their belief that the circumstances in rule 8.2(b) applied was reasonable in all the circumstances.

[68] Similarly, there was nothing improper in either Corrections or the Police receiving or considering the documents as part of their decision making process. Indeed I note that Mr Lyttelton himself provided Corrections (Mr Botha) with copies of most of the relevant documents. As Keane J observed in King v Parole Board (in the context of a recall application) the Parole Board can receive any material under the Act, with no regard to whether it would be admissible in a court of law.²⁸ This applies equally to individual parole officers charged with making important decisions regarding the day to day implementation of general conditions of parole, in the interests of public safety.

[69] Mr Lyttelton also seeks declarations that the complaints made to the Police by Mr Davison and Ms Quinn should not have been relayed to Corrections. This claim is also misconceived, on a number of grounds.

²⁸ King v Parole Board, above n 23.

[70] In practical terms, there was a sharing of information between two public sectors, in accordance with a Memorandum of Understanding between them (“MOU”). The guiding principle set out in the MOU is to:²⁹

...create an environment of co-operation between the two Agencies that is established to enhance community safety by reducing the incidence and effects of crime, to contribute to safer communities by protecting the public and reducing re-offending and to maintain the law and order...

[71] Schedule 4 of the MOU provides for sharing information between the two agencies and sets out that:

The fundamental principle of information sharing between the Department of Corrections and the New Zealand Police is to enhance public safety through the professional exchange of relevant information.

...

Of particular importance is the identification of information that will enhance the safety of offenders and victims, and both Agencies should explore opportunities to share such information at a national and local level.

[72] The MOU further provides that:

New Zealand Police will advise Community Probation and Psychological Services of any high risk situations involving Community Probation and Psychological Services offenders, when sentence management or public or staff safety may be affected.

[73] Police are required under the MOU to advise Corrections of the above as soon as the significant risk is identified.

[74] Such co-operation between the two agencies is entirely proper and is to be expected. It is consistent with the purposes of the Act and appropriately facilitates the provision of important information to Corrections to enable it to discharge its statutory functions in relation to the management of offenders on parole. Indeed in circumstances where the Police are aware that a parolee potentially poses a risk to public safety they could be subjected to justifiable criticism if they did not pass on relevant information to Corrections.

29. Memorandum of Understanding between the Department of Corrections and the New Zealand Police dated December 2009 at 4.1.

[75] Further, the Police decision was an operational one, which would usually only be judicially reviewable in exceptional circumstances, such as where there was evidence of bad faith. There is no evidence of that here.

Discretion not to order relief

[76] Mr McCoubrey submitted that, even if the Court found that there had been errors in Corrections’ decision making, the Court should exercise its discretion not to order relief in circumstances where the non-association direction is no longer in effect, and has not been for more than a year. Any relief would therefore be futile. He noted that the Court will not ordinarily give a remedy if it is useless to do so. As Casey J held in Fowler & Roderique Ltd v Attorney-General:³⁰

Events have overtaken this application, rendering any order the Court may make of academic interest only. Remedies under the Judicature Amendment Act are discretionary and whether or not it would ever have been appropriate to make a declaration of invalidity in respect of the 1979 Notice, it cannot be justified now.

[77] There is obviously no need for me to exercise my discretion not to grant relief, given that I have found that none of the grounds of judicial review have been made out. I do note, however, that, the fact that Mr Lyttelton has long since finished his period of parole, and delayed significantly in bringing these proceedings, would likely have raised some difficult issues at the relief stage if he had been able to establish one or more of his grounds of review. Indeed it is arguable that the fact that Mr Lyttelton’s term of parole has finished not only renders relief futile, but also renders the entire proceedings moot.

[78] In Wilson v New Zealand Parole Board the Court of Appeal dismissed an appeal against a decision of Ronald Young J dealing with an application for judicial review of a decision of the New Zealand Parole Board.³¹ The decision that was subject to review was a decision of the Parole Board setting release conditions for Mr Wilson. The Judge upheld the judicial review application in relation to one of those conditions but dismissed it in relation to all of the others. Prior to the appeal being heard, Mr Wilson was recalled to prison. The Court of Appeal held that the practical underpinning of the appeal

³⁰ Fowler & Roderique Ltd v Attorney-General [1987] NZCA 92; [1987] 2 NZLR 56 (CA) at 78.

³¹ Wilson v New Zealand Parole Board [2013] NZCA 190.

had been removed by Mr Wilson’s recall. As a result, it dismissed the appeal on the basis of mootness.

[79] It is arguable that in this case issues relating to the non-association condition are equally moot, because Mr Lyttelton is no longer subject to parole. I make no formal determination on that issue, however, as it was not fully argued before me. Rather, the mootness issue was raised in support of the somewhat narrower submission that I should decline relief if I concluded that any of Mr Lyttelton’s judicial review grounds had substance. I have found, however, that they do not.

Summary and conclusion

[80] I have concluded that:

(a) Corrections’ decision to make the non-association direction was not made in a way that was procedurally unfair in all the circumstances.

(b) Neither the Police nor Corrections acted for an improper purpose.

(c) The Police did not act unlawfully in relation to any privileged information. Further, there was nothing improper in their sharing of information regarding Mr Lyttelton with Corrections.

[81] It follows that there is no substance to Mr Lyttelton’s various complaints regarding the decision making processes of the Police or Department of Corrections, and that his application for judicial review must be dismissed.

Result

[82] The application for judicial review is dismissed. If costs cannot be agreed between the parties then leave is reserved to file memoranda. Any memoranda on behalf of the respondents or interested party are to be filed and served by 15 February 2016. Any response from the applicant is to be filed and served by 29 February 2016.

[83] Finally, I make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other
publicly available database, until final disposition of retrial. Publication in law report or law digest permitted. The reason for this order is to protect Mr Lyttelton’s fair trial rights.

Katz J