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University of Otago Law Theses and Dissertations |
Last Updated: 13 May 2025
When Foxes Are in Charge of the Henhouse: Criminal Disclosure in Aotearoa New Zealand
Zoe Kellam
A dissertation submitted in partial fulfilment of the requirements for the degree of Bachelor of Laws (Honours) at the University of Otago – Ōtākou Whakaihu Waka.
October 2024
Acknowledgements
Thank you to Stephen Smith for your invaluable time, encouragement and confidence in both me and this area of law.
Thank you to Henry Benson-Pope for your innovative ideas and insightful perspectives.
Thank you to Sarah Saunderson-Warner for your guidance, pupillage and support. I hope one day I can carry myself as calmly as you do when cross-examining a witness.
Thank you to my friends and flatmates over the past four years for your uplifting senses of humour and patience with my messiness. Tom, Boyce, Says, Hans and Bailey especially – thank you for listening to me, loving me and at least feigning interest.
Thank you to my Granny Andy, Uncle Dan and Aunty Danni for supporting me, laughing with me and discussing how to solve the world’s problems with me while I have been in New Zealand.
Thank you to my fiercely independent and intelligent Mum for showing me how to work hard and still have fun.
Table of Contents
“The State should wield the broad sword of a warrior, and not the dagger of an assassin.”
An unknown prominent lawyer when discussing the unprecedented $20,000 costs order made against Crown prosecutor, Ben Vanderkolk.1
1 Mike White “How top prosecutor Ben Vanderkolk fell from grace” (18 November 2023) The Post
<www.thepost.co.nz/nz-news/350111803/how-top-prosecutor-ben-vanderkolk-fell-grace>.
Introduction
It is widely understood that foxes do not belong in a henhouse. If, and when, foxes enter a henhouse, their behaviour is guided by primitive, instinctual drives, unless something greater than them is present to deter them.
The analogy of a fox in the henhouse represents the disconcerting proximity to which Police act in their investigation and prosecution of crime. While Police are not meant to approach their job as foxes or adversaries, one cannot help but appreciate that their job to disclose exculpatory evidence to defendants is in direct conflict with their instinct to protect victims and secure a conviction. Just as a henhouse needs a sturdy gate or a vigilant watchdog to ensure safety, the criminal justice system requires vigilant rules and compliance with them to ensure a defendant’s fair trial rights are kept safe.
The integrity of the criminal justice system hinges on transparency and fairness, particularly in how relevant information is shared with defendants. Criminal disclosure is the process through which all relevant material pertaining to a prosecution case is released and made available to the defence.2 In essence, it is a quasi-inquisitorial process, the aim being that all relevant material is considered.3 It requires those responsible for disclosure to undertake neutral evaluation of evidence and information and supply it to the relevant party.
The fundamental principle of natural justice requires that both sides be heard.4 This principle provides that no defendant shall be judged without the opportunity to present their case and respond to the evidence against them.5 Therefore, defendants should know what they are charged with and what evidence there is against them – including exculpatory evidence. However, as this dissertation discusses, natural justice is not always upheld in Aotearoa when defendants do not receive all relevant information in a criminal proceeding.
2 New Zealand Police Criminal Disclosure (20 September 2023) at 5.
3 Tom Smith “Changing Culture? Thinking differently about police and prosecution disclosure” in The Law of Disclosure: A Perennial Problem in Criminal Justice (Routledge, United Kingdom, December 2020) 32 at 36.
5 D Hewitt Natural Justice (Butterworths, Wellington, 1972) at 120.
In Aotearoa, the Criminal Disclosure Act 2008 (CDA) governs the process of criminal disclosure. The CDA’s purpose 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”.6 This dissertation proposes that the CDA’s purpose is not always being upheld, because “non-disclosure” is occurring in cases.
“Non-disclosure” is used in this dissertation to refer to the failure of prosecutors to comply with their disclosure obligations under the CDA, particularly ss 12, 13 and 14.7 As senior defence barrister Chris Stevenson KC submitted in R v Lyttle, “disclosure failings in this country are... commonplace”.8 Mr Stevenson submitted there is an obdurate refusal to confront the systemic problems in New Zealand, and the failure to do so leads to miscarriages of justice and the undermining of public confidence in the rule of law.9 The Court however, did not address this submission in Lyttle, stating that, “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”.10
It is understandable that the courts may be reluctant to address the trend of disclosure failings in Aotearoa, when generally they are confined to the facts of the specific case.11 Therefore, this dissertation will address some of the issues raised by Mr Stevenson where the courts have been reluctant to do so; namely the commonality of disclosure failings, the instances of miscarriages of justice, and the undermining of public confidence in the rule of law.
This dissertation examines factors argued to contribute to non-disclosure in Aotearoa and recommends further ways to improve the operation of the CDA, above simply “encouraging compliance”.12 Despite the CDA being in place for over 15 years, and common law duties of disclosure preceding this legislation, disclosure problems have existed and will exist as long as the culture remains the same; this is why disclosure problems have outlived statutory frameworks and the common law, including in comparable jurisdictions.
7 “Non-disclosure” also occurs in other jurisdictions when their framework governing disclosure is not complied with.
8 R v Lyttle [2020] NZHC 488 at [65].
11 This has not stopped the court in some instances such as Zhang v R [2019] NZCA 507.
12 R v Johnson and Hemara [2023] NZHC 2948.
This dissertation will proceed in five chapters. Chapter I begins by exploring the theoretical rationale for criminal disclosure, outlining the CDA and the Court rules designed to get evidence before the defence. The purpose of Chapter I is to canvass in theory how disclosure should be operating and demonstrate that disclosure obligations are clearly spelt out.13
Chapter II examines the key factors contributing to instances of non-disclosure. These include the adversarial nature of the system and the culture this encourages; the entrenched attitudes of Police; inexperienced Police; and inadequate systems to deal with the sheer volume of information in proceedings.
Chapter III highlights the consequences of non-disclosure as found in the Police Manual on Criminal Disclosure (the “Manual”), but also as recognised in practice in Aotearoa and comparable jurisdictions. This chapter draws on the cases of Alan Hall, David Lyttle, Paul Bublitz, Psalama Timoti and Gail Maney to illustrate the profound and serious implications of disclosure failings.
Chapter IV appreciates the crucial timing of the High Court Practice Note (HCPN) on Criminal Disclosure in 2023 and acknowledges the contributions the HCPN, Susan Thomas J and members of the legal profession have made at a time where non-disclosure is an increasing cause of concern. While the HCPN may have gone some way to encourage compliance with the CDA in the High Court, it is not applicable in the District Court. Therefore, the underlying problem persists that defence still do not know what they do not know.
Finally, Chapter V provides recommendations and a realistic overview of how Aotearoa may be able to progress with disclosure in the future to ensure that the purpose of the CDA and the rule of law is upheld. This chapter draws on commentary from the United Kingdom and Australia to strengthen the argument that above all, a culture change is necessary.
This dissertation reflects on cases involving real individuals, particularly Alan Hall, David Lyttle and Gail Maney. These three individuals have all spent time imprisoned for crimes they did not commit, on account of the non-disclosure of relevant, exculpatory information. While
13 It necessitates only a brief overview as the Working Group found the framework to be adequate.
they themselves are only individuals, the net casts a lot wider than them. It is imperative to acknowledge the whānau of the victims in these cases – Arthur Easton, Bret Hall and Dean Fuller-Sandys – who have endured long-periods of false hope and despair as they await answers. Although not all instances of non-disclosure result in wrongful convictions, every failure of disclosure can undermine the integrity and confidence in our criminal justice system.
Chapter I: New Zealand’s Legislative Framework Governing Disclosure
A The Rationale for Disclosure in Criminal Proceedings
1 Equality of arms
The main theoretical purpose of disclosure is to remedy the inequality between the defence and the prosecution in terms of investigative resources.14 As the late Justice Kevin Bell of Victoria, Australia pointed out, the prosecution usually enters a criminal trial with two advantages: “having superior resources and having conducted the investigation that led to the charges being brought”.15
The prosecution is state-funded and has investigative resources that provide an advantage over the defence; this inequality in resources is exacerbated for those relying on legal aid services. Disclosure helps to redress the imbalance that would otherwise characterise an adversarial system in which investigators and prosecutors have the backing of the state.16 Requiring the prosecution to disclose all relevant material to the accused, including material that may undermine the prosecution case, goes some way to achieving an “equality of arms” between the parties, and thus a fair trial.17
The Law Commission said in recommending a statutory disclosure regime in 2000:18
...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.
14 Allard Ringnalda “Procedural Traditional And The Convergence Of Criminal Procedure System” (2014) 62(4) Am J Comp L 1133 at 1151.
15 Ragg v Magistrates’ Court of Victoria [2008] VSC 1 [50][2008] VSC 1; , (2008) 18 VR 300.
16 Victorian Law Reform Commission Committals: Report (Victorian Law Reform Commission, 16 September 2020) at 9.
17 At 9.2. This is subject to exceptions such as CDA, s 17 where it is in the public interest to withhold some information, such as that pertaining to informant identity.
18 Law Commission Criminal Prosecution (NZLC R66, 2000) at 193. This recommendation took the form of the CDA 2008.
The Law Commission identified the need for a formal legal framework to ensure that obligations for the prosecution were clearly formulated and to ensure defendants could access relevant information in a proceeding against them. Endeavouring to ensure defendant’s rights were upheld led to the creation of the CDA; however, as this dissertation discusses in Chapter III, this is not always happening in practice.
2 The right to a fair trial and the New Zealand Bill of Rights Act 1990
In the Supreme Court of Canada case R v Stinchcombe, Sopinka J stated:19
[12] I would add that the fruits of the investigation which are in the possession of Counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.
One of the fundamental tenets of the rule of law is the right to a fair trial. This is reflected in international conventions including Article 14 of the International Covenant on Civil and Political Rights (ICCPR) 1966.20 New Zealand ratified the ICCPR on 28 December 1978, committing New Zealand to upholding fair trial rights.21
Defendants are reliant on the prosecution for disclosure of material obtained in state-funded investigations that may be relevant in the interests of a fair trial.22 In R v Sullivan, the High Court observed that the Crown is to approach its disclosure obligations not as an adversary to secure a conviction, but to ensure that justice is done.23 In R v H, Lord Bingham highlighted that the duty on the prosecution requires disclosure of material, “not relied on as part of its formal case against the defendant”, irrespective of whether it strengthened or weakened the prosecution case.24 This requires the Police or the prosecutor to put aside their goal of securing a conviction in light of a greater purpose – the pursuit of justice and a duty to uphold the rule
19 R v Sullivan [2014] NZHC 1105 at [34] (citing R v Stinchcombe [1991] 3 SCR 326 at [12]).
20 International Covenant on Civil and Political Rights 1966 and European Convention on Human Rights 1950. 21 Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: A Commentary (LexisNexis, Wellington). 22 Smith, above n 3, at 36.
23 R v Sullivan, above n 19, at [34].
24 R v H [2004] UKHL 3; [2004] 2 AC 134, 147. This is about England’s statutory test under s 3 of the CPIA, which requires the disclosure of material “which might reasonably be considered capable of undermining the case for the prosecution against the accused or of assisting the case for the accused”. This is similar to Aotearoa’s definition of “relevant” information in CDA, s 8.
of law.25 Disclosure also encourages correct procedures are followed by prosecuting bodies, by disclosing and exposing the detail of a Police investigation to defence scrutiny.
The right to a fair trial is embodied in s 25(a) of NZBORA.26 This fair trial right is absolute and cannot be subject to reasonable limitations under s 5.27 Disclosure is also a key mechanism by which the right to adequate time and facilities to prepare a defence is upheld, under s 24(d).28 Without prosecuting authorities adequately disclosing information in their possession, defendants are denied the opportunity to test the allegations against them and therefore their right to an effective defence is diminished.29 In Simpson v Ministry of Agriculture and Fisheries, Fisher J stated that ss 24 and 25 implicitly require full pre-trial disclosure through the right to adequate time and facilities to prepare a defence.30
B The Criminal Disclosure Act 2008
The CDA created a new statutory regime for criminal disclosure, following recommendation by the Law Commission in 2000.31 Previously, practitioners relied on various common law duties, the Privacy Act 1993 and the Official Information Act 1982 to receive documents from the Police and other prosecuting agencies.32 The CDA, which came into force on 29 June 2009, replaced this miscellany of provisions and the common law with a detailed disclosure regime, which includes a diagrammatic representation of the process.33
The CDA refers to three types of disclosure: disclosure by a prosecutor (ss 12-19); disclosure by a defendant (ss 20-23); and disclosure by non-parties (ss 24-29). Either side may be guilty of not complying with their legal obligations, but since defendants has less onerous obligations, issues are more commonly associated with the prosecution's responsibilities.34 This dissertation will focus solely on disclosure by the prosecutor (ss 12-19).
25 This is reflected in CDA, s 13.
26 New Zealand Bill of Rights Act 1990, s 25(a). 27 R v Johnson and Hemara, above n 12, at [9]. 28 New Zealand Bill of Rights Act 1990, s 24(d). 29 R v Lyttle [2022] NZCA 52 at [22].
30 Simpson v Ministry of Agriculture & Fisheries [1996] NZHC 1974; (1996) 3 HRNZ 342 at [30].
31 R v Johnson and Hemara, above n 12, at [16].
32 Hutton v R [2018] NZCA 419 at [20].
33 CDA, s 3(2). See Appendix 2.
34 Defence obligations are more limited not only due to imbalance in resources but also because of the onus on the prosecution.
1 Who is a prosecutor?
It is important to define who qualifies as a prosecutor in order to clarify that disclosure obligations may apply to anyone who falls within the definition set out in s 6. This dissertation will focus specifically on the disclosure practices of Police and Officers in Charge (OC).
The CDA defines a “prosecutor” in s 6 as:35
...means the person who is for the time being in charge of the file or files relating to a criminal proceeding; and includes-
(a) any other employee of the person or agency by whom the prosecutor is employed who has responsibilities for any matter directly connected with the proceedings; and
(b) any counsel representing the person who filed the charging document in the proceedings; and
(c) in the case of a private prosecution, the person who filed the charging document and any counsel representing that person
In most cases, an OC is responsible for the dissemination of information to prosecutors and to the defence.36 The OC leads the process of considering, preparing and providing disclosure.37 Defendants therefore rely on OCs complying with the CDA to receive relevant information. Thus, throughout this dissertation the term “prosecutor” primarily refers to the OC.38 Where a case is prosecuted by the Police Prosecution Services (PPS), the PPS play an active role in supporting the OC of a case, to ensure that the disclosure process operates efficiently and effectively (and in compliance with legislative timeframes).39 In some instances, including lower-level offending, the Criminal Justice Support Units (CJSU) may undertake some disclosure responsibilities.40
Disclosure obligations under the CDA do not typically rest with Crown prosecutors. Where a case is prosecuted by the Crown, the Crown prosecutor will have custody of the trial file, but the OC retains responsibilities for disclosure.41 Crown prosecutors should forward materials
36 New Zealand Police, above n 2, at 8.
38 Where the OC does not have the responsibility of disclosure, provision has been made.
39 New Zealand Police, above n 2, at 10.
they generate (and which fall within the ambit of the CDA, such as expert briefs of evidence) to the OC, so they can be dealt with appropriately and considered for disclosure.42
2 Relevant information
The governing principle of disclosure under the CDA is relevance: everything relevant must be disclosed and the onus is on the Police to do so, on an ongoing basis.43 “Relevant” information is defined in s 8 as:44
...in relation to information or an exhibit, means information or an exhibit, as the case may be, that tends to support or rebut, or has a material bearing on, the case against the defendant.
In Tito v R, the Court of Appeal considered the definition in s 8 as having two limbs:45
a) Information that tends to support or rebut the case against the defendant; or
b) Information that has a material bearing on the case against the defendant.
It is important to define relevance to demonstrate that the definition is broader than just inculpatory information against defendants; it also captures exculpatory evidence within its ambit. The misunderstanding of “relevance” is discussed in Chapter II as contributing to instances of non-disclosure.
3 The three-step process
The CDA adopted a three-step process under which prosecuting authorities are required to provide disclosure.46 These three steps reflect an escalating level of specificity in the nature of the information that prosecutors are required to disclose.47
43 Simon France (ed) Adams on Criminal Law (online ed, Thomson Reuters) at [CDA 12.02].
45 Tito v R [2019] NZCA 586 at [20]. The Court held that the word “tends” means that the first limb of the relevance test is broad, and the second limb narrower.
46 R v Lyttle, above n 29, at [27].
47 At [27]. This dissertation will only briefly canvass the disclosure statutory regime for the purpose of context, because the High Court Working Group on Criminal Disclosure found the legislation to be adequate, problems with disclosure compliance persisting because of its operation in practice.
The first stage is initial disclosure under s 12(1). Information that must be disclosed pursuant to s 12(1) includes a summary of facts that fairly informs the defendant of the facts on which it is alleged that an offence has been committed, and the facts alleged against the defendant. More detailed information may be sought by the defendant under s 12(2). The information listed in s 12(2) is to be provided “as soon as is reasonably practicable”; however, it is often the case that this information is not made available until after the defendant has entered a not guilty plea.48 The time-period of 15 working days within s 12 is the only specific timeframe provided in the CDA.
The second step concerns s 13. Section 13(1) requires the disclosure of any relevant information be provided, “as soon as is reasonably practicable after a defendant has pleaded not guilty”. The obligation for the prosecution to provide full disclosure is a proactive one. Full disclosure is a wider and more comprehensive disclosure obligation intended to facilitate the “effective formulation of any defences, promote as far as possible an equality of arms, and expedite the trial process”.49
Section 13(2) requires the prosecution to produce a list of any relevant information being withheld, along with the reasons for withholding it. Upon request from the defence, the grounds for withholding must also be disclosed unless disclosure of the refusal grounds would prejudice the interests protected by ss 16-18. In practice, this takes the form of the “disclosure index”.50 There are eight categories of information set out in s 13(3) that must be disclosed, being a non- exhaustive list of the information that may fall within that general disclosure obligation. This information is in addition to initial disclosure requirements under s 12.
The proactive nature of disclosure under s 13 is reinforced by Gwyn J in S v R, who held that:51
[36] It was the responsibility of the Crown to actively acquire all of the relevant information it would need to disclose under s 13 of the [CDA 2008]. It did not meet its obligations by
48 Craig Thompson (ed) Abbott and Thompson District Court Practice (Criminal) (online ed, LexisNexis) at [I.12.1].
49 Stephanie Bishop and others Garrow and Turkington's Criminal Law in New Zealand (online ed, LexisNexis) at [CDA 13.1].
51 S v R [2020] NZHC 1375 at [36]. Overall, this case underlines that the prosecution’s disclosure obligations are ongoing, sometimes wide-ranging and may require follow-up to ensure their duties are performed. The prosecution should make reasonable efforts to meet its obligations and is unlikely to be able to rely on incidental hindrance to disadvantage the defence.
sitting back and waiting until information was requested by the defence and only then seeking to obtain it from any third parties holding relevant information.
New material which comes into the possession of the prosecutor (such as that arising out of a continuing investigation) must be considered for disclosure under ss 13(5) and (6). The obligation to disclose information to the defendant under s 13 as soon as is reasonably practicable is also subject to any order made under ss 30 or 32.52
The third step in the disclosure process concerns s 14. Under s 14, the defendant can request “particular information” in addition to full disclosure under s 13.53 At any time after the duty to make full disclosure has arisen the defendant may request that the prosecutor disclose any particular information, identified by the defendant with as much particularity as possible.54 The prosecutor must then disclose the requested information unless the information is not relevant, or if the request is frivolous or vexatious.55 If the prosecutor decides to withhold information, the defendant must be advised of the reasons for withholding the information and can request grounds in support of the reasons.56
In R v Hall, the Court of Appeal stated:57
[628] ... Should the defence wish to pursue a particular inquiry which is made known to the Crown, then in the interests of justice the Crown should assist by supplying any information it has relevant to that inquiry.
Section 14 is therefore an avenue for defendants and their counsel to use when they are developing a theory for their case or have grounds to believe that more information that can assist their case exists but is not in their hands yet.
52 Hutton v R, above n 32, at [34].
53 CDA, s 14. This is why it is often described as particularised disclosure.
55 CDA s 14(2)(c). As soon as is reasonably practicable after a request has been received and a task created in NIA or IMT, the OC case will review the request, assess its relevance, and (where disclosure is required) prepare the necessary materials.
56 Craig Thompson (ed) Abbott and Thompson District Court Practice (Criminal) (online ed, LexisNexis) at [I.14.1].
57 R v Hall [1987] 1 NZLR 616 at [628].
4 Section 30 Court order for disclosure of information
Lord Hope of Craighead, in R v Brown said “...if fairness demands disclosure, then a way of ensuring that disclosure will be made must be found”.58 Section 30 can be viewed as a way of ensuring disclosure. Under s 30, the defendant may seek court-ordered disclosure of withheld or otherwise undisclosed information that the defendant is already entitled to under ss 12, 13 or 14.
Section 30 contemplates that a court may order disclosure with or without conditions. In some cases, a prosecutor may properly refuse to disclose information, but a court may, in conducting the balancing exercise in s 30, order unconditional disclosure.59 The court may overturn and order the disclosure of material if the interests protected by withholding of that information are outweighed by other considerations that make it desirable, in the public interest, to disclose the information.60 This decision may be appealed under s 33.61
As confirmed by the Court of Appeal in Hutton v R, s 30 envisages the following three-stage analysis:62
In considering whether the court is satisfied under s 30(2) that information should be disclosed, the court must have regard to the overall context in which the disclosure issue arises, including the purpose of the Act.63 Therefore, s 30 can be seen to apply a balancing test to remedy rare situations where the legitimate withholding of relevant information is likely to cause an injustice.
58 R v Brown [1997] UKHL 33; [1998] AC 367 at [380].
59 Hutton v R, above n 32, at [31].
62 Hutton v R, above n 32, at [33].
5 Section 16 and Section 17
The CDA provides that there can be limitations to disclosure when other more powerful matters in the public interest outweigh the disclosure obligation.64 Such circumstances include where it may be necessary to protect the identity of Police informers or undercover officers, or where there may be some special risk of interference with witnesses, fabrication of evidence or perversion of justice.65
Section 16 lists fifteen grounds a prosecutor may withhold information the defendant may otherwise be entitled to.66 Where a withholding ground applies, the prosecutor may withhold the information, but this is discretionary.67 An example of one ground is where disclosure of the information is likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences.68
Pursuant to s 17, if relevant information does not currently exist or is not currently held or controlled by the prosecution, there is no requirement for disclosure.69 It is therefore a likely concern of defendants and their counsel that prosecution agencies are not required under the CDA to disclose information known but not committed to recorded form; such as information learned by an officer in the course of his/her duties but not committed to record.70 This is somewhat combated by the Manual, which requires officers to record all information relevant to an investigation and any related Police activities.71
C The Criminal Procedure Rules 2012
The Criminal Procedure Rules 2012, r 4.8(4) states that the Case Management Memorandum (CMM) must indicate whether there has been CDA 2008 compliance. The CMM is jointly completed by defence lawyer and prosecutor following discussions.72 In practice, the vigour with rule 4.8(4) directs the conduct of Police and prosecutors is unknown. The CMM is
65 Commissioner of Police v Ombudsman [1988] NZCA 211; [1988] 1 NZLR 385, 397 (CA), per Cooke P.
66 CDA, s 16(1). See Appendix 3.
67 Stephanie Bishop, above n 49, at 16.1.
70 Stephanie Bishop, above n 49, at 15.5.
71 New Zealand Police, above n 2, at 7.
72 Criminal Procedure Rules 2012, r 4.8(4).
generally filed quite early on in a criminal proceeding, which may be too early in larger cases to know if all relevant information has been disclosed, especially in ongoing investigations.
D The Solicitor-General’s 2013 Prosecution Guidelines
The Solicitor-General’s Prosecution Guidelines were issued in 2013 following the 2011 Review of PPS.73 The guidelines lack clarity and depth with reference to disclosure obligations; for example, point 19.4 states that: “Prosecutors [should] ensure that they comply with the disclosure obligations contained in the Criminal Disclosure Act 2008”.74 The persuasiveness and vigour with which this point encourages compliance is not particularly strong, the wording “should” not importing any mandatory obligation.
E The Conduct and Client Care Rules 2008
The Conduct and Client Care Rules, r 13.12, requires a prosecuting lawyer to “act fairly and impartially at all times” and in doing so, comply with all obligations concerning disclosure to the defence of evidence material to the prosecution and the defence.75 Violation of any Rule can lead to a Lawyers and Conveyancers Disciplinary Tribunal finding of unsatisfactory conduct or misconduct.
However, Crown prosecutors are later to a proceeding than the investigating Police or the OC, and are typically handed over the file following redactions taking place and “relevance” being determined.76 Errors in disclosure are therefore more often on behalf of the investigating Police who fail to meet their disclosure duties at this early, pre-handover stage – and who are not bound by the Conduct and Client Care Rules. This was seen in R v Timoti, where Becroft J placed no blame on Mr McMullan, who acted for the Crown in a trial that was “bedevilled by grossly inadequate compliance” with statutory disclosure obligations.77 Instead, Becroft J
73 Crown Law Solicitor General’s Prosecution Guidelines (1 July 2013) at [2].
75 Lawyers and Conveyancers Act (Conduct and Client Care) Rules 2008, r 13.12.
76 All decisions about what should be disclosed/redacted need to be made by the OC case (in consultation with/the agreement of their supervisor). However, advice can be sought and provided by legal specialists. 77 R v Timoti & Ors [2023] NZHC 2031 at [1].
recognised the all too familiar finding that Mr McMullan “[could] do no more than pass on what he was told by the officer in charge of discovery and the officer in charge of the case”.78
Police conduct is not governed by the same ethical standards that applies to lawyers. While Police have their own Code of Conduct and internal disciplinary processes, this is often dealt with in the employment context governed by the Employment Relations Act 2000.79 External complaints are dealt with by the Independent Police Conduct Authority (IPCA) who investigate and resolves complaints against Police. Resorting to submitting a complaint with the ICPA will not fix disclosure in the relevant case. It is a process in which accountability may be pursued but is akin to “treatment of the symptoms rather than the prevention of the disease”.80 There is a need for more proactive obligations on Police and prosecutors, such as is recommended in Chapter V.
F The Police Manual on Criminal Disclosure
The New Zealand Police have a 58-page manual on criminal disclosure (the Manual).81 This demonstrates efforts by the Police to educate their staff about criminal disclosure and necessitates the view that Police ought to be aware of their disclosure obligations. Ignorance of the law is no excuse, thus this effort to educate on the law is necessary.. The Manual will be referred to throughout the dissertation as a benchmark from where Police receive their education about disclosure from.
G Yet Defence Counsel Are Still “Fossicking” For Information
Whilst there are avenues for defendants to request disclosure of material they are legally entitled to, this places a burden on the defence to work and “fossick” for information.82 With defence time and budget restraints it is suggested that placing the burden on defence to make
79 New Zealand Police Code of Conduct (June 2024) at 11.
80 Stephen Davies, Ed Johnston “Something to work with: Contemporary issues with pre-charge police disclosure and the role of the defence lawyer” in in Law of Disclosure: A Perennial Problem in Criminal Justice (Routledge, United Kingdom, 2021) 19 at 19.
81 New Zealand Police, above n 2, at 58.
82 Mallard v The Queen [2005] HCA 68 at [17].
requests for disclosure (of information they are already entitled to) is not fair nor just.83 Avenues for requesting additional disclosure are rendered largely unhelpful unless there is reason for defendants and their counsel to be suspicious of the existence of further information, or they know what information might be available to be disclosed.84 Ellis J in Johnson and Hemara stated that it is “no answer to say that the onus is on the defence counsel to make an application under the CDA if they consider the disclosure is deficient or lacking”.85
Yet, suspicion by counsel for Ewen MacDonald led to the revelation of further information not provided previously by the Police.86 Ewen MacDonald was the brother-in-law and accused murderer of Scott Guy, who was found dead on his property in Feilding, suffering from a gunshot wound. Police did not disclose for over a year that they had bugged MacDonald’s phones, until the defence suspected this had been done.87 The fact that in over 204 intercepted conversations, MacDonald had not said anything incriminating was relevant and important to the defence’s case.88
This same “fossicking” for information was seen in the case of Johnson and Hemara, described in more detail in Chapter II. The diligence of Peter Coles, Mr Hemara’s original defence counsel, was the only reason a letter of assistance given to a prison informant was discovered.89 This letter of assistance saw the informant receive a 40 per cent reduction in sentence from the sentencing judge. Had the letter not been discovered by defence counsel, the failure would have jeopardised the defendants right to a fair trial.90 Ellis J recognised this in her judgement:91
[216] It was only as a result of Mr Coles’ persistence – and his decision to cross-examine DS Vine at the pre-trial hearing – that the existence of the letter of assistance came to light.
83 This is especially exacerbated for those relying on legal aid funding.
84 Michele Ruyters, Gregory Stratton and Jarryd Bartle “The culture of non-disclosure and miscarriages of justice” (2021) 46(4) Alt LJ 299 at 304.
85 R v Johnson and Hemara, above n 12, at [228].
86 Mike White “Scott Guy's murder 10 years on – did cops get the wrong man?” (4 July 2020) Stuff
<www.stuff.co.nz/national/crime/121972334/scott-guys-murder-10-years-on--did-cops-get-the-wrong-man>.
Mike White is an investigative journalist. He has won awards for his articles on themes of justice within New Zealand.
88 Nevertheless, it is possible that Police did not contemplate this may have been relevant to the defence.
89 R v Johnson and Hemara, above n 12, at [215].
In Lyttle, 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. The late disclosure of information – exculpatory material – only came to light because of the persistence of defence counsel for Mr Lyttle, the Judge stating:92
[22] 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.
There was even further unredacted versions of documents that were only provided following queries by defence counsel about the redactions that had been made.93
H Conclusion on the Law and Rules Concerning Criminal Disclosure
Chapter II has canvassed a prosecutor’s disclosure obligations to reinforce the point that the law is clearly prescribed in the CDA, in relevant Court rules and guidelines, yet non-disclosure is still happening. This brief outline is intended to provide the benchmark from which disclosure is intended to operate. As highlighted in the Working Group’s findings (discussed in Chapter IV), the statutory framework within which disclosure operates in Aotearoa is adequate, therefore only minimal recommendations for legislative amendment have been made in Chapter V. The problem lies with how the CDA operates in practice, which as addressed in Chapter V, requires a culture change which is difficult to resolve simply by legislative amendment. It is important to outline the adequateness with the framework to exclude any perception that the framework itself is a precipitator of non-disclosure.
92 R v Lyttle [2017] NZHC 2631 at [26]- [34]. This “drip-feed” of disclosure has been documented in the United Kingdom (Smith, above n 3, at [39]) to have been utilised as a tactic to gain compliance from a suspect or obtain information.
93 R v Lyttle, above n 8, at [24].
Chapter II: Factors Contributing to Why Defendants Do Not Receive Disclosure of Relevant Information in Aotearoa
A Breeding Grounds of the Adversarial System
A fundamental issue within an adversarial system such as Aotearoa’s, is whether it is suitable to entrust prosecutors with the responsibility of deciding what information is “relevant” and should be disclosed, and what should be withheld.94 It has been suggested that putting the prosecution in charge of disclosure is tantamount to “putting a fox in charge of a hen coop”.95
Disclosure by prosecutors does not always sit well with the adversarial logic of fair truth finding.96 The zero-sum game by which adversarialism is characterised means that one party’s success inherently comes at the expense of the other’s failure.97 While Aotearoa has evolved beyond some of the traditional aspects of adversarialism, vestiges of its foundational principles persist, particularly the emphasis on opposing parties.98 This notion of rivalry between opposing parties’ rests upon the assumption that an “antagonistic presentation of competing versions of the truth by each party is the optimal device for determining the guilty or innocence of the accused”. 99
It is therefore questionable whether it is realistic to expect a prosecutor to deal fairly and objectively with issues of disclosure; due to the risks that the inherent nature of the desire to “win”, may be unconsciously or consciously impacting on the fulfillment of their obligations.100 It must be borne in mind that a prosecutor whilst a “minister of justice”, also has a legitimate interest in seeking the conviction of the accused.101 The competitive mindset of “winning” has the potential, and it is this dissertation’s objective to demonstrate that it does, distract and divert attention from a more important duty upholding the rule of law.
94 David Plater and Lucy A de Vreeze “Is the 'Golden Rule' of Full Prosecution Disclosure a Modern 'Mission Impossible'?” (2012) 14 Flin Law Jl 133 at 145.
96 Ringnalda, above n 14, at 1151.
98 Ringnalda, above n 14, at 1135.
99 Maro Polkyarpou “Prosecutorial and Police Disclosure Ethics in Criminal Evidence Review in the UK and the UK. A Comparative Account” (2022) 41 Criminal Justice Ethics 45 at 46.
100 Plater and de Vreeze, above n 94, at 133.
101 R v Johnson and Hemara, above n 12, at [230]. Here, Ellis J held that “it is fundamental that Crown prosecutors must act at all times as “ministers of justice”, and that standard was not met here.”
Kris Gledhill, Professor at Auckland University, mirrored the concern that prosecutors are not acting consistently with their “minister of justice” role when commenting on the non-disclosure of Crown prosecutor Ben Vanderkolk’s presence at a meeting with a prison informant.102 Ben Vanderkolk had asked the Police to omit from a job sheet that he and his assistant prosecutor had been present at a meeting with a witness in the murder prosecution he was conducting; his rationalisation of this was that he wished to avoid being called as a witness. Among other instances of non-disclosure, Kris Gledhill expressed that “what occurred in this case appeared to be inconsistent with the prosecutor’s “minister of justice” role”, and “reflected an adversarial, win-at-all-costs approach”.103
The prosecution obligations in ss 12, 13 and 14 of the CDA require loyalty to the abstract concept of truth-seeking, which contradicts the above-mentioned cultural norm of loyalty to a “side”.104 The assumption that prosecutors can discount and disengage from the adversarial framework to fulfil their disclosure duties is therefore fraught with difficulty and perhaps overly optimistic.105 This challenge is true for Police and the OC of a case more so than Crown or Police Prosecutors; Police run the investigations, and the OC or disclosure managers are responsible for handing the file over to prosecutors and defence counsel.106
However, as Mr Stevenson expressed, critics ought not to endorse “the hands-off approach” by the Crown in New Zealand whereby the Police are routinely blamed for disclosure failings.107 Crown prosecutors have their own obligations to disclose and too can be guilty of non- disclosure.108 However, as is discussed in Chapter V, this may be remedied to an extent by the HCPN’s requirement that Crown prosecutors be involved earlier on in the disclosure process so as to not encourage this “hands-off approach” in certifying disclosure compliance.
Regarding the overall affect that the adversarial environment has on non-disclosure, it is unrealistic to expect a change to the foundations of the system and it is unrealistic to expect that legislative amendment can immediately change deeply entrenched attitudes. Thus, as this
105 Plater and de Vreeze, above n 94, at 146.
106 New Zealand Police, above n 3, at 52.
107 R v Lyttle, above n 29, at [79].
108 As seen in the non-disclosure by Crown prosecutor Ben Vanderkolk.
dissertation discusses in Chapter V, culture change may be possible when Police become (more) self-aware of the inherent tension in their roles and take active steps to attempt to negate its effect.
B Police Culture as a Byproduct of the Adversarial System
In Richard Howell KC’s report on the failure of British authorities to properly disclose material in the Mouncher case, he stated:109
Disclosure problems have blighted our criminal justice system for too long and although disclosure guidelines, manuals and policy documents are necessary, it is the mindset and experience of those who do disclosure work that is paramount.
Richard Howell is referring to the fact that there can be the most adequate disclosure framework, yet the mindset of those who are bound to abide by it is paramount for disclosure compliance. Richard Howell’s comments reflect this dissertation’s assertion that disclosure issues are persisting because of the existence of a deeper, cultural phenomenon, specifically adversarial culture within policing; this is something legislation alone cannot change.110 This view is supported by referring to the experiences of the United Kingdom, Australia and New Zealand, where disclosure issues have endured despite legislative changes to frameworks.111
Commenting on the experience in Aotearoa, former Police officer and private investigator Tim McKinnel said he felt there was a culture of tolerance for non-disclosure and late disclosure.112 Tim McKinnel has worked as a private investigator assisting with overturning the wrongful convictions of Teina Pora, Gail Maney and Alan Hall, and has witnessed firsthand how the practices of Police can lead to miscarriages of justice. Mr Stevenson has also referred to this similar cultural problem of a failure to comply with the CDA in the Court of Appeal.113
109 Richard Howell Mouncher Investigation Report (18 July 2017) at 24.9. The Mouncher trial collapsed because of human errors by the police and Crown Prosecution Service (CPS). Mr Howell’s report makes 17 recommendations for the police and the CPS to improve the disclosure process.
111 These three countries all use the adversarial system and relied on common law principles to govern disclosure prior to legislation being introduced.
112 Kirsty Johnson “How cogs are being tossed into the already clunky wheels of justice” (10 December 2022) Stuff < www.stuff.co.nz/national/crime/130652066/how-cogs-are-being-tossed-into-the-already-clunky-wheels-
113 R v Lyttle, above n 29, at [79].
The United Kingdom has recognised a deeply ingrained cultural problem that sees the Police viewing disclosure as an administrative or “bureaucratic issue” that only arises at the mid-point of litigation.114 Disclosure has been said to be regarded by Police investigators and prosecutors as an “inconvenient task” to be perfo1rmed after the evidence proving the accused is guilty has already been prepared.115 A House of Commons Justice Committee report found that failures to disclose evidence were at least partly due to perceptions by Police and prosecutors that disclosure is a “common courtesy”, rather than a core obligation of their job.116
This tension was echoed in a 2013 review of Queensland Police, led by former Australian Federal Police Commissioner Mick Keelty. Mick Keelty found that Police in Queensland did not see themselves as public servants and actively resisted attempts at interaction from other government departments.117 Therefore, this evidenced entrenched attitude of Police in jurisdictions such as the United Kingdom, Australia and Aotearoa may help to explain the persistence of disclosure failures despite legislative reforms to disclosure regimes:118
The argument therefore is that whilst other factors clearly contribute to the disclosure problem, they do not necessarily explain its longevity; rather, an entrenched adversarial culture in policing affecting the management of disclosure has kept the issue alive.
This cultural conflict clearly has the potential, and it is this dissertation’s assertion that it does, impact on the practice of disclosure. How this can be reconciled was discussed in the Handbook of the Criminal Justice Process in 2002, and further in Chapter V:119
If we accept the thesis that a cultural conflict exists, we should consider the impact this has on disclosure practice: in short, how officers might respond when faced (consciously or not) with this sort of ethical dilemma regarding disclosure. Like any form of cognitive dissonance, officers will want to resolve it; arguably, this will fall into one of two broad approaches. These are:
114 Attorney General’s Office Review of the efficiency and effectiveness of disclosure in the criminal justice system
(November 2018) at 22.
116 House of Commons Justice Committee Disclosure of Evidence in Criminal Cases (Final Report, 17 July 2018). 117 Jarryd Bartle, Greg Stratton and Michele Ruyters “Why police and prosecutors don’t always disclose evidence in criminal trials” (11 October 2018) The Conversation < https://theconversation.com/why-police-and-
prosecutors-dont-always-disclose-evidence-in-criminal-trials-104317>.
119 Michael McConville and Geoffrey Wilson The Handbook of the Criminal Justice Process (Oxford University Press, 2002) at 37.
engagement with or resistance to disclosure. Engagement with the disclosure process – in short, embracing it positively – might include providing relevant material that is available and/ or requested; doing so in a timely and accessible manner; and actively identifying and providing material that the defence should have on a continuous basis. In contrast, resistance to disclosure
– that is, actively fighting or passively avoiding engagement – might include providing no disclosure or partial disclosure, even if there is or might be relevant material; delaying, staggering or “phasing” access to information for tactical advantage; disengaging from the suspect and defence lawyer, thus preventing any cooperative disclosure process; and ignoring the possibility of additional unidentified material that could be disclosed (that is, not pursuing reasonable lines of inquiry).
The Police’s role by its very nature is open to being influenced by institutional and public pressure to act as partisan agents of the state. Police have an occupational interest in making a case against a suspect – to solve crimes and to bring criminals to justice – which can conflict with disclosing relevant material to defendants.120 The cultural norm – particularly within front- line policing – is to prioritise helping the harmed, not those who harm.121 This priority is particularly pertinent when a government adopts a “tough on crime” approach.122
In the United States, a trend has been observed in which:123
...prosecutors exposed to these external pressures might internalise the emphasis placed on conviction rates and thus perceive successful convictions as a measure of their self-worth. Thus, it is easy for such prosecutors to take ethical shortcuts to achieve their “worthy” goals.
Whilst not conflating the United States practice of law with that of Aotearoa, the possibility is not able to be excluded that institutional and public or political pressure may be impacting on the practices of Police.124 The United Kingdom who have produced commissioned reports on their disclosure practices, have also recognised that “officers are affected by shifting policy priorities (dictated by public opinion, national politics, internal targets and KPIs)”.125 It ought
120 Hannah Quirk “The Significance of Culture in Criminal Procedure Reform: why the Revised Disclosure Scheme Cannot Work” (2006) 10(1) IJEP at 49.
122 Polkyarpou, above n 99, at 52.
123 Daniel S Medwed “The Zeal Deal: Prosecutorial Resistance to Post Conviction Claims of Innocence” (2004) 84 BUL Rev 125 at 138.
124 Especially without any proper, commissioned review into what causes non-disclosure in Aotearoa, as seen in the United Kingdom.
to be kept in mind that policing does place many responsibilities on police officers and it must be remembered that they are “both public servants and human beings”.126
There are therefore difficulties in addressing and analysing the attitudes of Police because it involves inherent human biases that are hard to quantify, and that legislative change or intervention may not be powerful enough to negate. Pointing out the inherent tension in the role of Police is easy, but taking steps to reduce its effect requires a collaborative approach, as is discussed in Chapter V.
C Deliberate Non-Disclosure
Deliberate non-disclosure is the intentional withholding of evidence required to be disclosed in legal proceedings.127 While the adversarial nature of the system and police culture can explain inadvertent non-disclosure, this section specifically addresses intentional and deliberate non-disclosure.
Tim McKinnel, when discussing Ewen MacDonald’s case, insisted that “non-disclosure of such fundamental evidence wouldn’t have been an oversight”.128 Tim McKinnel further remarked, when commenting on non-disclosure of such fundamental evidence:129
It’s deliberate. You don’t forget to do it. You make a conscious decision not to disclose it. And I think it harks back to an archaic attitude that Police will determine what’s relevant and what’s not. And I’m sure it’s happening many, many times that we still don’t know about.
Tim McKinnel’s assertions make it clear that Aotearoa’s Police are entrenched in a culture where it is not surprising that they might deliberately withhold evidence from a defendant.
The burden on Police and prosecutors to prove an offence to the standard of beyond reasonable doubt requires material be placed before the fact-finder that supports the facts being alleged. The likelihood of success is greater when presenting inculpatory rather than exculpatory
127 This would be not disclosing relevant information pursuant to ss 12, 13 and 14 as required by the CDA, with no proper ground for withholding it.
evidence; a lack of exculpatory evidence would therefore increase the likelihood that an individual would be found guilty.
Not presenting exculpatory evidence is a decision or a mistake; and investigators Tim McKinnel and Paul Bass would support the stance that there have been instances of decisions being made to withhold exculpatory material without any proper exclusionary grounds. Former detective-turned-investigator Paul Bass was also convinced Police and the prosecution deliberately tried to hamper the defence team in Ewen MacDonald’s case, saying:130
It is clear that justice has seriously miscarried in this case. As to why that is so, the Crown accepts that such departures from accepted standards must either be the result of extreme incompetence or of a deliberate and wrongful strategy to secure conviction.
1 Deliberate non-disclosure in R v Hall
Alan Hall suffered a significant miscarriage of justice on account of deliberate non- disclosure.131 Mr Hall was convicted by a jury in September 1986 of the murder of Arthur Easton, and of intentionally wounding Brendon Easton.132 He spent 15 years of a life sentence imprisoned for a crime he did not commit.
A critical part of the Crown’s case was the identity evidence given by eyewitness Mr Turner, who described having seen a man running away from the scene of the crime at the relevant time.133 Mr Turner rang the Police on the night of the murder and was subsequently interviewed the day after. In his telephone call and in his statement of 14 October 1985, he had described the man he saw running from the scene as a “male Māori”. In his statement, he was also confident the man “was definitely dark skinned, he was not white”.134 The third collection of evidence from Mr Turner was on 19 February 1986, after Mr Hall had become the focus of Police inquiries. Police challenged Mr Turner’s description of the offender as Māori, however Mr Turner still maintained this description, saying, “I am 100% sure he was a Māori”.
131 Nicolette Levy Solicitor-General’s Terms of Reference Inquiry by Nicolette Levy QC into the Crown’s Prosecution Role in Certain Matters Concerning the Obtaining and Upholding Of The Conviction Of Alan Hall (13 July 2022) at 1.
132 Hall v R [2022] NZSC 71 at [1].
The issues with disclosure arose when Police prepared a written statement for Mr Turner to sign on 24 June 1986 in which omitted the mention of the man running away as Māori. This was the version of the statement read to the jury, as Mr Turner was not in court to give evidence.135 This was also the version of the statement provided to defence counsel and to the Court.136 Mr Turner’s statement should have included the description of the man as given by Mr Turner in full; there was no ground for removing the word “Māori” from the statement.137 The OC admitted to making the change to remove the word “Māori” from the statement; why this was done may have had something to do with a Police “sighting” experiment conducted at the scene where Mr Turner described the man he saw. However, not even the Supreme Court could understand the exact reason why.138
In August 2024, a summons was issued for the Police involved in the investigation and prosecution of Alan Hall. Police have charged two former staff members who were involved in the original homicide investigation along with a former prosecutor involved in the subsequent trial.139 This recent development offers hope to the legal profession and perhaps resembles a change in attitude towards the acceptance of non-disclosure.
D Under-Educated and Inexperienced Police
In a written statement in 2022, a Police spokesperson told investigative journalist Kirsty Johnston that: “Police accept that training and practices in the application of the [CDA] can be improved”.140 As a cohort, Police in Aotearoa are not necessarily as well-educated or aware of their disclosure obligations as they should be. This gap in knowledge includes prosecutors’ disclosure obligations specifically (as outlined in ss 12–19), their understanding of the definition of “relevant” (as defined in s 6), and what redactions should and should not be made (such as under s 16).
135 This deliberate omission by Police went unnoticed by Mr Turner when he signed it.
136 Mr Turner’s earlier statements were not provided to defence counsel until March 1988 – approximately seven months after the appeal to the Court of Appeal (which failed).
137 Hall v R, above n 132, at [19].
139 Cushla Norman “Three to appear in court over Alan Hall case” (23 August 2024) 1News
<www.1news.co.nz/2024/08/23/three-to-appear-in-court-over-alan-hall-case/>.
Whilst something may not be “relevant” to the prosecution, this does not necessarily make it irrelevant to the defence’s theory of the case. Relevant materials include exculpatory material; however, this is sometimes overlooked and not always understood. Issues with the understanding of “relevance” can be exacerbated in less complex, volume crime which is more likely to be dealt with by inexperienced and under-resourced front-line officers who have less familiarity with producing a prosecution case file.141 In fairness to Police, requiring them to decide whether relevant material might reasonably be expected to assist the defence case is deeply problematic when the Police may not know the value of an item of evidence for the defence case.142 This is why open and regular communication ought to be facilitated between those managing disclosure and defence counsel.
In the United Kingdom, Richard Horwell KC recognised inexperience and inadequate training as contributing to disclosure errors, in concluding:143
Disclosure errors were not designed to pervert the course of justice; they were the consequence of inexperience, poor decision making and inadequate training, leadership and governance... The joint inspectorate report described a “culture of acceptance” that must change.
1 Under-educated Police in R v Lyttle
The case of David Lyttle exemplifies deficiencies in Police education and training. On 28 June 2014, David Lyttle was charged with the murder of his friend, Mr Hall, in May 2011 at Mr Hall’s remote farm property north-east of Whanganui.144 In late 2019, Mr Lyttle was convicted of murdering Mr Hall and was sentenced by Mallon J to life imprisonment with a minimum period of 11 years.145
There were a number of delays in having Mr Lyttle’s trial heard, mostly attributable to repeated failures by the Police to comply with their obligations under the CDA.146 There were two adjournments of the trial fixture, and a subsequent mistrial. Incorrect assurances had been given
141 Fiona McLean and Libby Potten “The Search for New Solutions to the Disclosure Problem: Behavioural and Empirical Perspectives” in Law of Disclosure: A Perennial Problem in Criminal Justice (Routledge, United Kingdom, 2021) 57 at 58.
142 Michele Ruyters, Gregory Stratton and Jarryd Bartle “The culture of non-disclosure and miscarriages of justice” (2021) 46 Alt LJ 299 at 303.
143 Richard Howell, above n 109, at 14.6.
144 R v Lyttle, above n 29, at [28].
to the court as to the completeness of disclosure, which were followed by “large tranches” of disclosure.147 The trial judge in Lyttle, when discussing incorrectly redacted documents, suggested that ill education could have been a cause of this.148 Simon France J when declining an application for a stay of proceedings, stated:149
[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 what 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.
Simon France J held in his judgement for a third stay application, that the reasons for not disclosing informant information were based on an “erroneous view of a senior Police officer about the Police disclosure obligations”.150 This demonstrates that the seniority or ranking of officers does not necessarily make them more knowledgeable as to their disclosure obligations. Although Simon France J declined the third stay application, he said the problems with disclosure in this case reflected “inadequate systems, indefensible decisions by individual officers, a confusion over disclosure principles, and no apparent willingness [by Police] to take advice”.151 The late Len Andersen KC also referred to the fact that sometimes police do not understand their obligations or do not seek legal advice.152 Thus, an environment must be fostered where asking for advice is something Police feel comfortable and encouraged to do.
Although Simon France J later accepted the redactions were probably “the result of uncertainty over the risk of identifying the information”153, Lyttle still demonstrates that non-disclosure often occurs in larger cases with multiple factors contributing to non-disclosure of information to the defence.
It is therefore apparent that the ongoing education of Police and those making redactions is not up to the necessary standard to protect the integrity of the justice system. Police ought to see
147 R v Lyttle, above n 92, at [41].
148 R v Lyttle [2018] NZHC 2648 at [15].
150 R v Lyttle [2019] NZHC 1150 at [72]- [84].
152 Steven Price “Mr Lyttle Meets Mr Big: Top 10 police disclosure failures” (23 June 2023) RNZ
failures>. Steven Price is a law lecturer and journalist based in Wellington. He sat through David Lyttle's nine- week trial in the High Court at Palmerston North in 2019, taking about 1000 pages of notes.
153 R v Lyttle [2018] NZHC 2689 at [25].
the value in asking for advice when confused or unsure about what redactions should be made; the value being that asking for help in uncertainty protects the integrity of the justice system and upholds the rule of law. Education in this sphere can be improved and needs to be improved; this is addressed in Chapter V.
E Sheer Magnitude of Information and Inadequate Systems
Disclosure is a “labour-intensive” task, often completed at the end of months of investigation.154 Disclosure is now so voluminous that a traditional printed file is difficult.155 There is now more information than ever – because of the proliferation of digital data – that must be considered for disclosure. The sheer magnitude of information compounded by inadequate systems to deal with this information does pose a challenge to those in charge of disclosure. It was recognised in Lyttle that Police did not act improperly deliberately; rather, there was inadequate systems in place to handle the excessive information.156
In the United Kingdom, the House of Commons concluded that the growth in digital technology had led to an increase in the volume and complexity of material collected by the Police, and thus there is a strain on the capacity of Police and prosecutors to review and disclose materials.157 United Kingdom-based barrister Joanna Hardy has referred to the “digital crater” that exists, explaining in detail that a single phone can tell you:158
...what time [the user] woke up because they have an alarm app [...] what they had for breakfast because they have a health app [...] what they put in their satnav, where they went, what time they got there, potentially how fast they drove, where they parked and what they had for lunch. If they go to a bar [...] a taxi app might show what time they left.
Joanna Hardy is referring to the excessive information that can be collected from one phone alone, that may make reviewing, collating, storing and disclosing relevant information more difficult. In early 2023, there were a total of 6.54 million cellular mobile connections active in
154 New Zealand Police Electronic Redaction and Disclosure (2 May 2022) at 4.
155 Sarah Saunderson-Warner “Update on Criminal Law Disclosure Issues” (Power point presented at South Otago Conference, Dunedin, 22 July 2023) at 24.
156 R v Bublitz [2018] NZHC 373 at [77].
157 House of Commons Justice Committee, above n 116, at [18].
Aotearoa.159 This is why it is important to have adequate systems and a central record keeping system to deal with information that may come from an investigation, such as the mobile phones and laptops of suspects, witnesses and victims.
However, managing information well is a “critical component of effective policing”.160 Despite the sheer magnitude of information any one case may contain, Simon France J in Lyttle rightly recognised that: “The prosecution task is to do [disclosure] properly whatever its complexity and the resources needed”.161
The New Zealand Police currently do not employ a singular management system or process for administering prosecution cases.162 Instead, districts utilise one or more of a range of tools including National Intelligence Application (NIA) or Investigation Management Tool (IMT). IMT is “a centralized database that enables the storage, management, retrieval and access of all investigative information related to the enquiry”.163 It is a software-based solution that has improved management of investigative casework. While IMT organises and creates a central space for the storage of potentially disclosable material, it still relies on the proactive efforts of the OC to hand all information they receive from investigating police to Crown Prosecutors and defence counsel.
1 Sheer magnitude of information in R v Johnson and Hemara
In Johnson and Hemara, the sheer magnitude of information and lack of developed systems to keep up with the management of this information was a clear cause of the prosecution’s non- sharing of information in the hands of the prosecution, with the defence.164 In this case, Mr Joseph Johnson and Mr Chea Hemara – together with Mr William Hines – had been charged in 2017 with the murder Mr Palmiro MacDonald.165 The charge against Mr Hines was dismissed in August 2018, and following an unsuccessful trial that resulted in a hung jury, the charges against Mr Hemara and Mr Johnson were also discharged.166
159 Simon Kemp “Digital 2023: New Zealand” (13 February 2023) DataReportal
<https://datareportal.com/reports/digital-2023-new-zealand>.
160 New Zealand Police Information Management: Information management policy (20 March 2024) at p 3
161 R v Lyttle, above n 147, at [9].
162 New Zealand Police, above n 2, at [49].
163 Sarah Saunderson-Warner, above n 154, at 17. 164 R v Johnson and Hemara, above n 12, at [201]. 165 At [1]
Disclosure problems arose in this case due to the inter-gang backdrop in which the anonymity and safety of prison informants needed consideration; all three defendants and the victim had various gang connections.167 The judgement refers to such issues as often being “fraught and difficult to navigate for all concerned”.168 This compounded by the sheer magnitude of the file and Police investigation, and inadequate systems to manage this information was an equation for disaster. The judgement recognised this in saying:169
[201] To the extent blame for any chaos can usefully be attributed to anything in particular, it is my strong sense is that it was largely a function of a confluence of factors (such as the wider gang context and the late finding of Mr MacDonald’s remains), rather than a function of any lack of care or competence by Police.
167 These different gang connections included the Nomads, the Mongrel Mob and the Head Hunters.
168 R v Johnson and Hemara, above n 12, at [3].
Chapter III: Consequences of Non-Disclosure
A Consequences as Prescribed in the Police Manual on Criminal Disclosure
The consequences of non-disclosure range from no effect on a trial, to dismissals under s 147 of the CPA for murder charges.170 The Manual sets out an array of consequences of non- disclosure on a case, in hierarchical fashion, depending on the severity of non-disclosure:171
Early cases of non-disclosure are likely to be dealt with using defence applications to court for:
For more serious cases of non-disclosure, s 34(2) of the CDA empowers the court to either:
A significant disclosure failure, without reasonable excuse, could result in:
170 Criminal Procedure Act, s 147.
171 New Zealand Police, above n 2, at 48.
The Manual also recognises that a failure to disclose may also “negatively affect the perception of a professional Police service”.172 In addition to the recognised consequences of non- disclosure in the Manual, Chapter III explores further consequences of failure to comply with the CDA. Costs orders pursuant to s 364 of the CPA will also be addressed in further depth.
B Miscarriages of Justice and a Decline in Confidence in the System
Non-disclosure can provide grounds for a successful appeal, but non-disclosure does not in itself (automatically) mean that a miscarriage of justice has occurred.173 The critical issue in any given case will be whether the non-disclosure was material enough to give rise to the risk of a miscarriage of justice.174
As the Court of Appeal in Lyttle stated:175
[22] Without prosecuting authorities adequately disclosing information in their possession, defendants are denied the opportunity to test the allegations against them. This in turn leads to miscarriages of justice and wrongful imprisonment. As stated by the House of Lords:176
[14] Fairness ordinarily requires that any material held by the prosecution which weakens its case or strengthens that of the defendant, if not relied on as part of its formal case against the defendant, should be disclosed to the defence. Bitter experience has shown that miscarriages of justice may occur where such material is withheld from disclosure. The golden rule is that full disclosure of such material should be made.
A “miscarriage of justice” is defined in the CPA as:177
173 Mohi v R [2019] NZCA 441 at [26].
174 At [26] (citing Olsen v R [2017] NZSC 18 at [16]).
175 R v Lyttle, above n 29, at [22].
176 R v H [2004] UKHL 3, [2004] 2 AC 134 at [14].
177 Criminal Procedure Act 2011, s 232(4).
Any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.
Miscarriages of justice affect the rights of the individuals wrongly convicted, which cannot be quantified in merely financial terms. They affect the families and friends of the victims and the wrongly convicted. Gail Maney, who was acquitted in October 2024 of murder after spending
They lost their mother, they lost each other, they lost their security, their home, their trust.
Miscarriages of justice also cost the state in terms of money, resources and public confidence. Concerning Alan Hall’s miscarriage of justice, Auckland senior defence barrister Marie Dyhrberg KC said:179
What is going to happen to the public confidence when you hear that there is a particular case where there has been really serious misconduct ... to achieve a conviction?... Surely the public will want to know that those who embarked upon that course of conduct will have to face responsibility.
In Timoti, Becroft J recognised that the jury was becoming frustrated and was losing confidence in the justice system when disclosure of hundreds of photographs and a notebook came a few days into the trial.180 Not only will the jury lose confidence in the justice system when they experience lengthened trials or are discharged weeks into a trial because of incomplete disclosure, but this may lead to a (more) skewed perception of the standard New Zealand’s criminal justice system operates to.
Over a century of media reporting means many New Zealanders regard and will regard cases like Gail Maney, Alan Hall, David Lyttle and Apisaloma Timoti as representative of the entire
178 1News Reporters “Gail Maney will fight for compensation after murder acquittal (3 October 2024)
<www.1news.co.nz/2024/10/03/gail-maney-will-fight-for-compensation-after-murder-acquittal/>.
179 Hamish Cardwell “Alan Hall case: Call for accountability after murder conviction quashed” (9 June 2022) RNZ <www.rnz.co.nz/news/national/468767/alan-hall-case-call-for-accountability-after-murder-conviction-
quashed>.
180 R v Timoti, above n 77, at 40.
justice system.181 The credibility and ability of Police to get the right person is therefore called into question. In Lyttle, Simon France J, when declining a defence application for a stay based on incomplete disclosure, stated:182
[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.
1 Miscarriage of justice in R v Hall
In 2022, the Crown and the Supreme Court recognised there had been a substantial miscarriage of justice in the case of Alan Hall, and that the interests of justice required verdicts of acquittal be entered.183 This miscarriage of justice was on the basis that evidence relevant to the jury’s assessment of the identity of the offender (which was contested) was materially altered and that the relevant documentation was not disclosed to the applicant.184 Not only was Alan Hall affected by the errors of Police and prosecutors, but the families involved were impacted as well. Winkelmann J acknowledged that “just as the criminal justice system has failed Mr Hall, so too has it failed the Easton family”.185
The egregious nature of the miscarriage of justice led to a Solicitor-General’s Inquiry conducted into the matter by Nicolette Levy KC.186 The inquiry was established to determine, as swiftly as possible, “how the non-disclosure that contributed to this miscarriage of justice occurred”.187 Should another egregious miscarriage of justice such as that of Alan Hall’s happen again, as discussed in Chapter VI, a detailed, commissioned review of disclosure in Aotearoa ought to take place such as has occurred in the United Kingdom. Gail Maney’s October 2024 acquittal should be the next in line for consideration of an inquiry.
181 Nigel Stone “Improving New Zealand’s Prosecution System: A Practical Reform Proposal to Avoid Miscarriages of Justice” [2012] WkoLawRw 4; (2012) 20 Wai L Rev 67 at 82.
182 R v Lyttle, above n 29, at [42].
183 Hall v R, above n 133, at [3].
186 Nicolette Levy, above 131, at [3].
2 Miscarriages of justice in the United Kingdom
Mr Stevenson has submitted that there is now compelling evidence that non-compliance with disclosure obligations is a leading source of miscarriage of justice in cognate jurisdictions.188
The United Kingdom’s Criminal Cases Review Commission (CCRC), established in 1997, is the independent body that investigates potential miscarriages of justice in England, Wales and Northern Ireland.189 In 2018, the outgoing chairman of the CCRC said that failing to disclose vital evidence is the “biggest single cause” of miscarriages of justice and the problem is getting worse.190 The under-staffed Police and CPS offices, the limited funding, the inexperienced officers and lawyers, and the adversarial culture that permeates both institutions have all contributed to the longstanding problem in the United Kingdom.191
The House of Commons Justice Committee report Disclosure of Evidence in Criminal Cases was produced following an inquiry into the acquittal of Liam Allan. In this case, evidence held by the Police had not been disclosed to the prosecutors or the defence until the day of the trial. This evidence undermined the prosecution case to such an extent that the CPS case collapsed.192
Aotearoa also has a CCRC, having been established in 2020, approximately 23 years after the United Kingdom’s CCRC. The CCRC in Aotearoa also employs specialist staff with the mandate to investigate possible miscarriages of justice.193 It can also refer a case back to the appeal court when it considers a miscarriage of justice may have occurred. However, the CCRC in New Zealand has not been nearly as active as that of the United Kingdom. Aotearoa does not have the benefit of such comprehensive and wide-ranging reports as the United Kingdom into disclosure failings.
188 R v Lyttle, above n 29, at [22].
189 United Kingdom Criminal Cases Review Commission “Criminal Cases Review Commission” (2024) Criminal Cases Review Commission <https://ccrc.gov.uk/>.
190 Owen Bowcott “Failure to disclose vital evidence in criminal cases growing, says watchdog” (11 October 2018) The Guardian < www.theguardian.com/law/2018/oct/11/failure-disclose-evidence-miscarriage-justice-
warning-criminal-cases-review-commission>.
191 Polkyarpou, above n 99, at 46.
192 House of Commons Justice Committee, above n 116.
193 New Zealand Government “Te Kāhui Tātari Ture Criminal Cases Review Commission” (2019) Criminal Cases Review Commission <www.ccrc.nz/>.
C Trials Aborted and Contribution to Court Backlog and Delay
Non-disclosure and late disclosure are contributing factors to the continual court backlog and trial delay in Aotearoa, an OIA briefing saying: 194
Defence lawyers do not have sufficient information to properly advise defendants about whether or not to elect a jury trial, so they advise defendants to elect a jury trial just to preserve their option..
Not having sufficient information to provide proper advice was one reason the wait list for District Court jury trials has almost doubled since 2018, to 1700 cases.195 The wait time recently lifted from 374 days to 500. The Police have acknowledged this has implications for the integrity and public confidence in the court system, and adversely affects participants including defendants, victims, survivors and witnesses.196
1 Trial aborted in R v Bublitz
In Bublitz, eight months into the trial in 2017, the prosecutor told the defence for the first time that 14,000 documents had been held back. 197 Over 5000 of those documents should have been disclosed. Bublitz was aborted nine months into the trial, as the Judge considered these breaches of the CDA gave rise to a reasonable danger of a miscarriage of justice.
2 Delays in R v Lyttle
In Lyttle, material non-disclosure by the Police caused delays of almost two-and-a-half years. There had been four earlier dates set down. The second and third trial dates set down did not proceed and were vacated, Police having failed to meet their obligations under the CDA. The trial commenced on the fourth date, but a mistrial was ordered in the second week for the same reason – Police failing to meet their obligations under the CDA.198
194 Phil Pennington “Police aim to beef up court prosecution resources with $26m plan” (1 November 2023) RNZ
<www.rnz.co.nz/news/national/501399/police-aim-to-beef-up-court-prosecution-resources-with-26m-plan>.
197 R v Bublitz, above n 156, at [l12].
198 R v Lyttle, above n 8, at [2].
In Lyttle, the Judge was particularly concerned with the impact the delays had on the families involved, saying: 199
[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”... 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. The families involved had to wait another year for the trial to take place.
Earlier and more consistent disclosure may make the criminal process more efficient, both by facilitating guilty pleas and by clarifying disputed issues for trial.
3 Trial aborted in R v Timoti
In Timoti, three defendants each faced a charge of murder, and two charges of wounding with intent to cause grievous bodily harm.200 However, because of the “very significant failure” in adhering to disclosure requirements, the jury was discharged without giving a verdict under s 22(3) of the Juries Act 1981; the trial was aborted and a rescheduling was required.201
At a pre-trial conference on 6 July 2023, defence counsel had highlighted the current difficulties with disclosure, claiming it was incomplete.202 Mr McMullan for the Crown, reassured the Court that disclosure was under control and was soon to be resolved. Just before the trial started, McMullan again, relying on the word of the Police, assured the Court that disclosure was complete – subject to some outstanding matters. However, on 26 July 2023, a further 250 Police photographs were found and disclosed just that day; one appeared to be of relevance.203 On the day the Judge eventually discharged the jury, Detective Le’au’s lost notebook was found, which contained 57 relevant pages.204
These cases are extreme examples of how non-disclosure can contribute to the epidemic of court back log experienced in Aotearoa. Not only that, but one cannot help but think how much
200 R v Timoti & Ors, above n 77, at [4].
taxpayer money, time and effort could have been saved if only disclosure obligations – as spelt out in ss 12-19 – were complied with in the first place.
4 Costs Orders under Section 364 of the Criminal Procedure Act 2011
Defendants can make an application for costs under s 364 of the CPA 2011 where there has been a failure to comply with the CDA 2008. Section 364(2) provides for the court to make costs orders where, in the course of a prosecution, there has been a significant procedural failure or refusal to comply with a requirement of the CDA 2008 or any associated regulations, and there is no reasonable excuse for that failure.205
A “procedural failure” is defined s 364(1) as:
...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 regulation made under that Act.
Section 364 is primarily intended to serve as a means of sanction (for procedural failures) but may well offer some compensation to defendants and others who have incurred loss.206 Costs can be awarded against either the Crown or the Police.207 In Johnson and Hemara, the Judge considered the $40,000 costs order should be borne equally by the Crown prosecutor and the Police.208 Here, the failures squarely engaged the defendants’ fair trial rights, and it was “disturbingly a matter of chance that they were uncovered”.209
In Lyttle, Mallon J made an order under s 364(2) for the Police to pay $75,000 in respect of repeated failures to comply with their obligations under the CDA. This was upheld in the Court of Appeal.210
Bublitz involved late disclosure which breached ss 13(2)(b) and (5) of the CDA. Disclosure “as soon as is reasonably practicable after a defendant has pleaded guilty, as per s 13(2)”, did not
205 New Zealand Police, above n 2, at 9.
206 R v Bublitz, above n 156, at [107].
207 Criminal Procedure Act 2011, s 364(8).
208 R v Johnson and Hemara, above n 12, at [233].
210 R v Lyttle, above n 29, at [93].
occur.211 There was no reasonable excuse for the failure in disclosure; it was, however, inadvertent.212 An order of $50,000 was made by the High Court against the Financial Markets Authority (FMA) as a censure for non-compliance with its disclosure obligations.213
In R v S, the High Court awarded CPA costs of $30,000 for multiple disclosure failures in the case involving medical evidence, and there had been delays in the trial because of disclosure issues.214
211 R v Bublitz, above n 156, at [119].
213 This case is also a demonstration despite this dissertation’s emphasis on Police, any person that fits the definition of “prosecutor” has disclosure obligations.
214 S v R, above n 51, at [41].
Chapter IV: Saved by the Bell? High Court Practice Note on Criminal Disclosure 2023
A The Working Group and Their Findings
In 2021, a Working Group was established and asked to consider if there were any systemic problems with timely disclosure and, if not, to identify the main causes of delay in disclosure in Aotearoa. In either case, the Working Group was asked to identify the impacts of problems relating to timely disclosure in High Court criminal trials and to provide a report recommending practical solutions.215 The group was chaired by Brewer J with representatives from the Crown and the defence bar.
The Working Group concluded that the CDA was adequate but there were issues with its operation in practice.216 On recommendation of the Working Group, the HCPN on Criminal Disclosure was produced. The findings of the Working Group however have not been made available to the public.
The United Kingdom have publicly produced their findings on disclosure, promoting transparency within our system. The United Kingdom also found, in 2017, that their statutory framework governing disclosure (the CPIA 1996) was not the cause of the current inadequacies exhibited in disclosure practices.217 The official governmental report states that the CPIA 1996 process “affords ample opportunity for the disclosure process to work if the relevant parties comply with their disclosure requirement at the right time”.218 These findings were published and publicly available; it would promote transparency and future improvement if the Working Group’s findings and recommendations were published too.
B The High Court Criminal Disclosure Practice Note
215 Chief High Court Judge The High Court of New Zealand | Te Koti Matua o Aotearoa: Annual Report 2022 (10 July 2023) at 19.
217 Attorney General’s Office “Review of the efficiency and effectiveness of disclosure in the criminal justice system” (November 2018) at 50.
218 Criminal Justice Inspectorates Fair Disclosure for a Fair Trial: An inspection of disclosure procedures and practices within the criminal justice system (May 2017) at 1.
The HCPN applies to all criminal trials in the High Court, effective from 8 March 2023.219 The purpose of the HCPN is “to put measures in place to avoid delay in making disclosure from disrupting criminal trials”.220 The Practice Note contains prosecution obligations and defence obligations.221 It requires the Crown and defence to address disclosure issues at an early date to avoid late disclosure. The HCPN’s most important feature is the requirement for Crown and defence counsel to meet. This has resulted not only in disclosure issues being addressed earlier but also in the identification and, in some cases resolution, of other issues.222
The HCPN implemented Judicial Disclosure Conferences (JDC) and a High Court Disclosure Checklist. The JDC operates as a meeting before the commencement of a trial to identify whether:
a) Full disclosure has been made; or
b) Full disclosure has not yet been made, but outstanding disclosure has been identified and a timetable for its completion can be directed; or
c) There is a dispute about disclosure which requires judicial intervention to resolve; or
d) There is an issue of non-party disclosure which requires judicial intervention to resolve.
At the conclusion of the JDC, the presiding judge will either record that full disclosure has been made or make such directions as are necessary to resolve any outstanding disclosure issues. JDCs are utilised “unless there is reason not to”; JDCs are therefore not mandatory and it is possible for arguments to their exception be raised. The Disclosure Checklist is a non- exhaustive list of potentially disclosable material.223 It is a working document intended to be regularly updated, the principle of “relevance” still guiding disclosure.
C Analysis of the High Court Practice Note
The implementation of the HCPN demonstrates that non-disclosure and late disclosure has been identified as a concerning trend requiring prompt attention. Becroft J in Timoti, who
219 2023 Practice Note “Criminal Disclosure in High Court Trials” HCPN 2023/1 (8 March 2023).
222 Susan Thomas CJ “LawTalk Issue 956: Update from Chief High Court Judge” (6 December 2023) New Zealand Law Society <www.lawsociety.org.nz/news/publications/lawtalk/lawtalk-issue-956/update-from-chief-high- court-judge>.
discharged a jury in a trial “bedevilled by grossly inadequate compliance with the disclosure obligations”, said Timoti demonstrated the exact reason that justified the Practice Note.224 However, the HCPN has only been in force since March 2023. Therefore, not enough time has passed to be confident that the JDC and Checklist are working to overcome issues, if any, with the operation of the CDA.
The HCPN’s inclusion of the requirement that prosecuting counsel are to meet with the investigating officer responsible for making disclosure – to decide which of the matters in 5(a)-
(d) applies – is a step towards involving prosecuting counsel more in upholding disclosure obligations. This goes some way to not endorse the “hands–off approach” of Crown prosecutors, as identified by Mr Stevenson. Involving the prosecuting counsel earlier on in the process and involving them in the decision as to whether disclosure is complete – rather than prosecuting counsel being handed over the file later with no obligation to consider whether disclosure is complete – is likely to promote more accountability for disclosure
The fact the HCPN contemplates exceptions to the use of JDC’s could be viewed as a loophole out of the benefits JDCs were supposed to bring to the operation of the criminal justice system. However, the exception is likely necessary when it comes to practicality and the smaller cases where disclosure is not an issue or there is not much evidence in possession of the prosecution.
Notably, the District Court is not included in the application of the HCPN. This situation somewhat parallels the United Kingdom’s bifurcated approach to disclosure, whereby disclosure operates differently in the Magistrates’ Court to the Crown Court.225 The Magistrates’ Court deals with less serious cases, while disclosure efforts by the CPS and Police are more concentrated on complex Crown Court cases.226 Nevertheless, the United Kingdom House of Common’s Justice Committee has acknowledged that the Magistrates’ Court still has its own disclosure challenges.227
Nevertheless, in Aotearoa, retired District Court Judge, Dr David Harvey said that the “same approach should be adopted in the [District Court] without delay”.228 The exclusion of the
224 R v Timoti & Ors, above n 77, at [42].
225 House of Commons Justice Committee, above n 116, at [146].
District Court from the HCPN is concerning considering the fact that the District Court is not immune from any of the issues above mentioned when it comes to disclosure. This leads directly to the recommendations for change in Chapter V.
Chapter V: Where to from Here? The Recommendations
Chapter V seeks to address how the contributing factors to non-disclosure as outlined in Chapter II, can be combated, with the caveat that change requires both advocates for change, and the allocation of money. Members of the extended legal profession in Aotearoa and overseas have advocated for change in the attitude of Police approaching disclosure for many years. Susan Thomas J’s initiative in establishing the Working Group that recommended the HCPN has gone some way in putting measures in to combat the distracting culture of the adversarial system; the HCPN itself was a recommendation on how to improve the practice of disclosure. However, internal accountability ought to be taken by Police now about how they can change their attitudes, practices in the investigation phases and handover of the file to prosecution.
A Criminal Procedure Act 2011 Amendment to Accommodate the District Court
In the best-case scenario, the HCPN would be adopted in a form amenable to the District Court as soon as possible. The current exclusion of the District Court from the operation of the HCPN likely reflects concerns over added time pressures such reforms may impose on District Court proceedings; especially considering the already mentioned backlog in the District Court. The District Court generally deals with less serious offences compared to those adjudicated in the High Court; however, this does not mean the District Court is immune from the findings of the Working Group. It is therefore necessary to consider reforms that enhance and improve disclosure in the District Court.
Disclosure problems could be addressed in the District Court by an amendment to the CPA at the “Trial call over” stage outlined in s 88. As part of the prosecution memorandum that must be submitted to the Court, there could be an implementation of the requirement for the prosecuting counsel and/or the Police to consider and acknowledge whether all evidence has been disclosed and if there has been CDA compliance. Such an amendment would require legislative action by Parliament; however, it is this dissertation’s assertion that there is currently enough persuasive evidence before Parliament and the Courts to recognise the severity of non- compliance with disclosure obligations in the CDA.
However, while this proposal aims to improve the efficacy of disclosure, it may prima facie conflict with the broader governmental policy objectives such as the initiative outlined in recent budgets aimed at “Improving Court Timeliness”.229 This is because introducing additional steps in the pre-trial process has the potential to exacerbate existing delays undermining the goal of reducing court backlog. However, the reverse is also true. Ensuring disclosure obligations are met through such an amendment could mean that fewer trials are aborted, delayed, and fewer stay of proceedings applications will need to be heard.
B Culture Change Within the Police
There is a recognition in Aotearoa, the United Kingdom and Australia that there is a need for a culture change to reduce instances of non-disclosure. However, culture change cannot happen overnight, and culture change typically lags behind policy change. Therefore, it is this dissertation’s assertion that cultural change will only come with understanding and a reform of attitude to view disclosure as a public duty separate from the adversarial character of a criminal trial.
The Victorian Law Reform Commission recognised that:230
There is also a need for cultural change within the Victorian Police, so that the importance of early disclosure of all relevant materials, and the obligation to make enquiries about the existence of relevant materials, is recognised and becomes entrenched in the force’s operating procedures.231
The House of Commons report also recommended “a shift in culture towards viewing disclosure as a core justice duty, and not an administrative add–on”.232
Culture change requires a “self– aware and objective consideration” of disclosure, underpinned by a culture that “encourages officers to step back from adversarial instincts and consider the correct course of action according to the legislative objectives”.233 Therefore, the first step in
229 The Estimate of Proportions 2024/25 Vote Police (30 May 2024) at 147.
230 Victorian Law Reform Commission Committals: Report (Victorian Law Reform Commission, 16 September 2020).
231 The importance of raising the issue with Victorian Police, is that this dissertation views these issues not to be isolated to police in one country, rather the prosecution and pursuance of crime in most adversarial systems.
232 House of Commons Justice Committee, above n 116, at [71].
addressing engrained cultural issues would involve acknowledging the inherent tension in the role of Police and prosecutors and becoming, if not already, self–aware. Next, it would involve actively taking steps towards reducing this potential effect on an individual’s role.
It is understandable that considering relevance from the perspective of defence counsel is a task for which Police and prosecutors are “culturally unsuited” and professionally “ill– equipped”.234 Asking the Police to consider how to undermine their own cases is asking a great deal.235 However, disclosure needs to be viewed as an investigative mechanism for reaching the truth, rather than an adversarial challenge to the success of a prosecution.236 This could be facilitated and reinforced when Police officers are being trained or supervised when working on disclosure. Dr Ed Johnston and Tom Smith in their book A Perennial Problem: Law on Disclosure, recommended:237
Cultural change of this nature cannot, arguably, be achieved unless officers are engaged in conscious learning, heightened awareness and considered reflecting in an institutional environment which breeds confidence and provides support. To simply lecture, guide and train will likely fall short.
The Police in Aotearoa have recently adopted the informal approach of, “if in doubt, disclose” following the miscarriage of justice in Lyttle coming to light.238 However, the unlearning of already held attitudes may be more difficult; that is why intermediary steps like continued CPD training and enforcement of accountability mechanisms are important.
C Increased Funding and Administrative Support for the Process of Disclosure
Increased funding will accommodate further administrative support and the maintenance of a centralised record keeping system. Tim McKinnel has commented on the link between non- disclosure and funding, expressing to investigative journalist Kirsty Johnson that:239
234 House of Commons Justice Committee, above n 116, at [115].
235 Hannah Quirk “Uncovering Disclosure Errors: Appeals, innocence projects and the Criminal Cases Review Commission” in The Law of Disclosure a Perennial Problem in Criminal Justice (online ed, Routledge, 18 December 2020) 80 at 86.
I think we have a degree of indifference, and an overly optimistic faith in the system uncovering that type of conduct – but the work required in practical terms to uncover that evidence hasn’t always been well funded.
The preparation of disclosure indexes, and communication with defence counsel (about what has been disclosed and what has not been disclosed) is an administratively heavy task. This requires employees to be in an office, not engaged in frontline policing. Police are aware they need a strong “back office” to assist with the administrative demands of criminal disclosure.240 The 2023 Police plan highlighted that “providing administrative support to progress a case will enable more timely disclosure and free up frontline staff for deployment into communities or emergencies".241
Since May 2023, to aid with case preparation and court appearances amid a backlogged court system, Police have deployed a number of frontline staff to support the increase in court time.242 However, most officers have since returned to the frontline. As part of Operation Surge, Police came up with a $26 million, two–year plan for adding 100 staff – 44 new hires – into prosecutions by 2025, on salaries of up to $365,000. This was an attempt to “relieve the pressure of Police deploying constabulary resources to deliver the increase in scheduled hours to address the backlog”.243
It is contentious whether the incumbent government will prioritise providing such administrative support considering the emphasis on front–line policing and helping the harmed. The National Party’s focus on general law enforcement growth and victims will likely bring more people before the courts and see more people face trial.244 The current government must ensure that their “tough on crime” rhetoric is not confused with cutting corners.245 There ought to be increased administrative support if the proportion of defendants before the courts increases.
244 National Party Real Consequences for Crime (2024).
245 As seen in the United States.
Internationally, the United Kingdom has encountered similar issues with disclosure that it is argued have been driven by a reduction in resources available across the system, including funding for the CPS, Police and for legal aid.246
However, excessive emphasis should not be placed on increasing resources as the primary solution to the persistent disclosure challenges observed globally. Nick Ephgrace, criminal justice lead for the National Police Chiefs’ Council (NPCC) in the United Kingdom, told the Justice Committee that:247
...but the answer is not just more resources. I think we need to fix the mindset issue, try to harness technology to solve some of the issues that technology is presenting [...] and, once we have done those things, maybe put our minds to resourcing.
This is further demonstrative of a solution that would be akin to “treatment of the symptoms rather than the prevention of the disease”– being the distracting environment and culture bred by the adversarial system. 248
D More Centralised Record Keeping System Especially in Relation To Prison Informants
The Manual acknowledges that effective disclosure is only possible with effective file management.249 Mallon J in the costs judgement in Lyttle, emphasised that it is essential for Police to have proper systems in place to deal with the challenges that disclosure can present in complicated and long running investigations.250 There was inadequate systems in Lyttle that led to non-disclosure of informant information.251 In W v R, the Supreme Court recommended that Police have a centralised record keeping system in relation to incentives offered to prison informant witnesses.252
246 House of Commons Justice Committee, above n 116, at [12].
248 Davies and Johnston, above n 80, at 19.
249 New Zealand Police, above n 2, at 5.
250 R v Lyttle, above n 8, at [77].
251 R v Lyttle, above n 29, at [69].
252 W (SC38/2019) v R [2020] NZSC 93 at [93].
Lyttle and W demonstrate that there is often a correlation between information from prison informants and confusion as to what needs to be disclosed and withheld.253 Therefore, when numerous informants are used and when incentives are offered to provide information, a central system ought to be developed and utilised so that this information is available to the defence in an appropriate form.
E Ongoing Education and Training for Police
Not all Police are lawyers. Whilst Police do have the Manual, this does not guarantee a comprehensive understanding of the fact that what is not “relevant” or helpful to the prosecution, is not necessarily irrelevant to the defence.254 Education in this sphere, including ongoing CPD training would be beneficial, but it should not be taken to be the solution to the entrenched attitudes that plague the system.
Following the inadequate compliance by the Police and the Crown in Timoti, a Police spokesperson said the Police were conducting a review of the disclosure in Timoti to ensure that their “processes and training provide the platform for file managers to comply with all statutory requirements”.255 What this looks like is not clear.
Mentoring and one–on–one coaching sessions are recommended to address general and individual performative issues, underscoring the need for continuous improvement in disclosure practices. The Manual recognises that:256
Opportunities for proactive coaching should also be explored. This may include advice about improving general problematic areas of disclosure for all staff delivered through line‐up training. However, dealing with specific areas of performance with staff members through one‐on‐one coaching sessions may be useful as well.
253 R v Lyttle and R v Johnson and Hemara being recent examples.
254 New Zealand Police, above n 2 at 33. This does state that “regardless of whether it supports the Police position, all information that has a material bearing on the case is relevant and disclosable”.
255 George Block “Police launch review after disclosure bungle blows up murder trial” (16 August 2023) the New Zealand Herald <www.nzherald.co.nz/nz/police-launch-review-after-disclosure-bungle-blows-up-murder-trial/>. 256 New Zealand Police, above n 3, at 53.
There are multiple stakeholders who could contribute to this educational effort, including the Police College in Porirua, the Police Minister and Government, the New Zealand Police Association and the ICPA. There is currently “Criminal Disclosure On–Line Training”, and IMT Disclosure Training Materials available to Police. 257 Defence lawyers have also taken to educate Police as to their own disclosure obligations recently. This is not their responsibility, but the fact it impacts on them and their ability to uphold their client’s rights means they have felt the need to take the task of education into their own hands.258
F Use of Amicus Curae to Continue to Be Considered
In higher-volume cases where disclosure issues often arise, ready consideration should be given to the appointment of an amicus curiae. Defined by the Ministry of Justice as “a person appointed by the court to assist the court”, an amicus can offer information and submissions about a particular area of law, or advance legal arguments on behalf of an unrepresented party.259 Appointing or calling on the services of an experienced lawyer who is independent of both the prosecution and defence can aid in uncertainty over what should be redacted and withheld and be more objective when determining “relevance”.
An amicus was appointed in Johnson and Hemara, when it was clear that information was so voluminous and redactions so great. Mark Corlett KC was appointed to go through redactions and provide a report on disclosure.260 Mr Corlett’s directions were to “review the redacted documents and advise against s 16 of the [CDA]”:261
258 Sarah Saunderson-Warner, above n 155, at 14.
259 The Ministry of Justice “Appearing in court - what you need to know” (19 April 2024) New Zealand Ministry of Justice < www.justice.govt.nz/courts/going-to-court/without-a-lawyer/representing-yourself-criminal-high-
court/appearing-in-court-what-you-need-to-know>. 260 R v Johnson and Hemara, above n 12, at [77]. 261 At [143].
Despite Mr Corlett’s review not giving rise to anything of significance, it is an important intermediary step that should be considered more readily.262
In R v Boden, an amicus was appointed in relation to s 30 CDA applications brought by the defendants.263 This was another high-volume case that involved a murder charge in which a body has not been found. Although the Judge declined to make disclosure orders in relation to the evidence that counsel for the defendants were seeking, an amicus nevertheless acted as a good check and balance on the reasons for withholding information.264 If the staff managing disclosure are distracted by the adversarial environment and emphasis on opposing parties, an amicus is one way to look at information without this tainted lens. If anything, appointing an amicus may encourage prosecutors and investigating Police to ensure the grounds for withholding information are proper and justifiable if they know an amicus could find errors in their disclosure practices.
However, as the High Court noted in Johnson and Hemara, in a larger and complex case, even an amicus is of “limited utility”, for there is no way for them to necessarily know the relevance of a particular piece of evidence entirely.265 Whilst this is true, and an amicus may also be an additional cost, this practice should continue to be considered in voluminous or highly contentious cases. An independent and impartial review of unused material would not be subject to the risk of confirmation bias.266
G Waiting Game and Ongoing-Consultation Regarding the Operation of the HCPN
As Kris Gledhill, Professor at Auckland University of Technology said:267
Once you’ve got a significant finding by a judge, of significant misconduct that merits a costs award, personally, that’s the sort of thing the Solicitor-General should be looking at... And I’d expect that review to examine whether this was a one-off incident, or if there is something more systemic that requires further investigation.
263 R v Boden [2024] NZHC 1471 at [3].
265 R v Johnson and Hemara, above n 12, at [228].
266 Ian Dennis “Prosecution Disclosure: Are the Problems Insoluble?” (2018) 10 Crim LR 829 at 841.
If, and when further issues of non-disclosure arise, there should be serious consideration of a commissioned review into the practice of non-disclosure not only in the individual case, but in Aotearoa as a whole. An example of an inquiry on the individual level was conducted by Nicolette Levy KC in the form of a Solicitor-General’s Terms of Reference, following Alan Hall’s miscarriage of justice. Tony Randerson KC, a former Judge of the Court of Appeal, was also instructed to conduct an independent assessment into the facts concerning nondisclosure issues raised by Ellis J’s judgment leading to the costs award in Johnson and Hemara.268
Should further disclosure issues arise despite the implementation of the HCPN, Aotearoa should consider following in the footsteps of the United Kingdom by commissioning a Parliamentary Report on Disclosure or instigate an initiative akin to the National Disclosure Improvement Plan (NDIP) as implemented by the CPS.269 NDIP was the primary response from Police and the CPS to recent disclosure failings in the UK; it represented a joint action plan and shared commitment to create a sustainable change to the way disclosure is tackled.270
268 Crown Law “Media Statement on Behalf of Solicitor-General: Solicitor-General Commences Palmerston North Crown Solicitor Review” (media statement, 19 December 2023) at 1.
269 McLean and Potten, above n 141, at 60.
270 There was also a complete review of the police curriculum in relation to disclosure and new eLearning developed, with over 100,000 officers and staff completing an online training package.
Conclusion
The definition of insanity according to some is “doing the same thing over and over and expecting different results”.271 Therefore, the current approach of enacting new legislation, guidelines and rules, coupled with promises to “encourage compliance”, is insufficient for addressing the persistent issue of non-disclosure. As highlighted, non-disclosure is a pressing problem in Aotearoa’s criminal justice system, and it echoes globally. It is this dissertations assertion that without substantial cultural and attitudinal shifts, non-disclosure will remain and enduring problem.
Chapter II demonstrated that the adversarial system itself contributes to non-disclosure. The competition encouraged by adversarialism conflicts with the inquisitorial duty of disclosure. Police, like all individuals, are influenced by their environment and are not immune to conscious or unconscious biases that affect the handling of disclosure. While New Zealand lacks explicit acknowledgement of this beyond the observations of Tim McKinnel and Mr Stevenson, international evidence, particularly from Australia and the United Kingdom, underscores the human factor in deliberate non-disclosure.
Chapter II critiqued the role of the New Zealand Police, whose inexperience and lack of training have led to critical non-disclosure, as demonstrated in Lyttle. Continued investment in administrative support, CPD training and mentoring is essential to address these issues. An environment should also be fostered whereby Police feel comfortable to ask questions when unsure if there is a withholding ground made out. The sheer magnitude of information that Police must process is excessive and onerous these days especially with the explosion of digital technology; despite this, the onus is on the Police to, no matter the size of the file, disclose relevant information as was discussed in Johnson and Hemara. Police can help themselves in this respect by developing and using a central recording system – such as IMT – to keep track of large volumes of information.
As explored in Chapter IV, the HCPN has only been in practice for just over a year. It is pertinent there is a review conducted to assess its effectiveness. Open discussions within the legal community are necessary to identify ways to enhance disclosure practices. Steps and
271 A play on words and not meant to substitute the scientific understanding of insanity.
proactive action need to be taken in the District Court too, who despite dealing with less serious offences, are not immune from the findings of the Working Group.
In the event that another significant instance of non-disclosure emerges before the courts or is brought to public attention by advocates like Tim McKinnel or Chris Stevenson, this dissertation strongly recommends the commissioning of an independent, thorough review. Such a review, with publicly accessible findings, would be essential to pinpoint systemic failings in disclosure practices in Aotearoa. Only with the involvement of those with resources, influence and authority to enact change can meaningful progress be achieved in resolving this issue.
Appendix 1
High Court Practice Note on Criminal Disclosure
Appendix 2
Section 3 Criminal Disclosure Act Purpose and overview
(1) The purpose of this Act 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.
(2) 
A general overview of the disclosure regime set out in this Act is set out in diagrammatic form below.
Appendix 3
(1) A prosecutor may withhold any information to which the defendant would otherwise be entitled under this Act if—
(a) disclosure of the information is likely to prejudice the maintenance of the law, including the prevention, investigation, and detection of offences; or(b) disclosure of the information is likely to endanger the safety of any person; or
(c) the information is—
(i) material that is prepared by or for the prosecutor to assist the conduct of the hearing or trial; or(ii) a communication dealing with matters relating to the conduct of the prosecution and is between—
- (A) the prosecutor and another person employed by the same person or agency that employs the prosecutor; or
- (B) the prosecutor and any adviser to the prosecutor; or
(iii) analytical or evaluative material prepared, in connection with an investigation that led to the defendant being charged, by a person employed by a person or agency for another person employed by that person or agency or for the prosecutor; or
(d) the information is subject to sections 108 and 109 of the Evidence Act 2006 (which relates to information about undercover police officers); or
(da) the information is subject to sections 109A and 109B of the Evidence Act 2006 (which relate to information about the name or address of intelligence officers and intelligence sources); or
(e) the information is subject to a pre-trial witness anonymity order under section 110 of the Evidence Act 2006 or a witness anonymity order under section 112 of the Evidence Act 2006; or(f) the information is subject to section 16 of the Victims Rights Act 2002 (which relates to information about witnesses’ addresses); or
(g) disclosure of the information would be likely to prejudice national security interests; or
(h) disclosure of the information would be likely to facilitate the commission of another offence; or
(i) disclosure of the information would constitute contempt of court or contempt of the House of Representatives; or
(j) the information could be withheld under any privilege applicable under the rules of evidence; or
(k) disclosure of the information would be contrary to the provisions of any other enactment; or
(l) the information is publicly available and it is reasonably practicable for the defendant to obtain the information from another source; or
(m) the information has previously been made available to the defendant; or
(n) the information does not exist or cannot be found; or
(o) the information—
(i) reflects on the credibility of a witness who is not to be called by the prosecutor to give evidence but who may be called by the defendant to give evidence; and
(ii) is not for any other reason relevant.
(2) If part only of the information may be withheld, the prosecutor must make the remainder of the information available if it is possible to protect the withheld information by deletion, summary, or otherwise.
(3) If the prosecutor becomes aware that there has ceased to be any justification for withholding all or part of any information that has been withheld under this Act, the prosecutor must, if the criminal proceedings have not yet been completed, disclose that information to the defendant as soon as reasonably practicable.
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