A closer look: Top 10 police disclosure failures

When police caught David Lyttle in a Mr Big sting in 2014, confessing on tape to the murder of Brett Hall, they thought they had Lyttle bang to rights. But over the next few years they repeatedly tripped themselves up, failing to disclose crucial evidence to Lyttle’s defence lawyers.

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Two trial dates were put off in 2017 and another trial was stopped mid-way in 2018 for the same reason – police failed to disclose evidence. One judge called it a “disgrace” and another “an affront to justice”. Serious words. Through 25 hearings into the case over four years, nine were about the police’s failure to disclose, as revealed in today’s episode of the podcast, Mr Lyttle meets Mr Big.

Those failures raise serious questions: how often does this happen? Can defendants get a fair trial if they are not given access to the information about them held by police, especially if it points away from guilt? Does this problem undermine the entire criminal justice system?

New Zealand is not the only country to worry about this. In 2013, five judges in the United States Court of Appeals referred to an “epidemic” of disclosure violations, some of them deliberate, and few of them punished. In Canada, a 2011 government report said disclosure problems “continue to plague the criminal justice system”. A string of inquiries in the UK found widespread evidence of injustices caused by disclosure failures. The government there has admitted that people are in prison who should not be.

This is a huge issue and there are lots of causes, according to former NZ Criminal Bar Association President Len Andersen. The rules are malleable. Disclosure is under-resourced. Between police and prosecution, no one takes ultimate responsibility. Sometimes police do not understand their obligations or do not seek legal advice.

In the David Lyttle case, police told the court that the new catchphrase is “if in doubt, disclose”. They said they had learned their lesson.

But New Zealand’s catalogue of crime is stuffed with famous trials where disclosure went badly wrong (though no judge has found the police or other authorities acted dishonestly). Here are the top 10 disclosure failures:

Dean Wickliffe

You might remember Dean Wickliffe, the bank-robber, kidnapper and accused murderer who is the only person to have escaped from Paremoremo’s maximum security unit twice. In 1972 he took a loaded semi-automatic gun into a Wellington jewellery shop, aiming to rob it, and ended up shooting jeweller Paul Miet. Wickliffe said he was trying to flee the shop when Miet jumped at him and his gun went off accidentally.

But the shop assistant told the jury that Miet had not made any sudden movement. He had just moved quietly in front of her and told Wickliffe to put the gun away. Wickliffe was convicted of murder.

But 13 years later, Wickliffe managed to get hold of a police jobsheet that had never been given to the defence. In the jobsheet, a constable had recorded what the shop assistant had told him shortly after the shooting. It says she said: “Miet appeared to jump at the gunman and there was a loud bang.”

The Court of Appeal changed Wickliffe’s conviction from murder to manslaughter.

Renee Chignall and Neville Walker

Then there are Renee Chignall and Neville Walker who, you might remember, were charged with murdering a client during a bondage and discipline session in 1989. They said it was an accident. But a jailhouse witness said Walker had confessed to him that the client’s arms were still twitching hours later when they dumped his body in the Huka Falls.

Police told the defence that the witness had a string of convictions and had been a police informer. At trial, the defence asked him whether the police paid him for being an informant. He said yes, but he did not know they were going to pay him, it was not much, and it was a long time ago. He said he had been paying for his own travel and accommodation. When he was asked about his criminal record, he said that thankfully, he had cleaned up his act in the last year or so.

This was not exactly the whole truth, as the defence would have known if the police had turned over more information. In fact, the police had paid the witness hundreds of dollars on ten separate occasions in the three years leading up to the trial. They had also paid his travel, food and accommodation expenses, including three months in a motel during the depositions hearing. If his criminal record looked better in recent years, it was because police had dropped more than a dozen cases against him including drunk driving, domestic violence and assault in the 18 months leading up to the trial.

The Court of Appeal said all this should have been given to the defence, who could have used it to powerful effect in cross-examination. They overturned the convictions and ordered a new trial. Walker and Chignall were eventually acquitted.

Ross Appelgren

Perhaps the most extraordinary case of all is that of Ross Appelgren. While Appelgren was in prison for a stack of offences, he was accused of killing another inmate, D’Arcy Te Hira. A prison snitch told the court he saw Appelgren from the next room, striking out with a wooden paddle. Appelgren was convicted in 1985.

But again, after the trial it emerged that police had not disclosed that the witness had told prison staff he did not see the attack and had not seen Appelgren in the room with Te Hira. Appelgren’s lawyers persuaded the governor-general to refer the case back to the Court of Appeal. The Court of Appeal ordered a new trial in 1990.

At about the same time as the new trial was being ordered, another prisoner came forward and admitted to two prison officers that he was the one who had ordered the hit on Te Hira, and it wasn’t Appelgren who did it. The prison officers immediately told the police, who recorded it on a jobsheet. But the police did not tell Appelgren’s lawyers. And – astonishingly - Appelgren was convicted again at the second trial in 1992, without this new evidence being put before the court.

When they lawyers found out, they went back to the governor-general. And the governor-general referred the case back to the Court of Appeal. Alas, Appelgren died before there were any further findings about his case.

Mark Lundy

Mark Lundy was convicted of murdering his wife Christine and daughter Amber in 2000. One piece of evidence against him was a small amount of tissue found on his shirt. The defence accepted Crown evidence that said the tissue had come from Christine’s brain or spinal cord.

In 2013, Lundy’s appeal reached the Privy Council, which ordered a new trial. One of the reasons was that police had failed to turn over a letter casting doubt on their analysis of the tissue.  An expert the Crown had consulted said the cells were badly degenerated and he was not sure it was brain or spinal cord tissue. He did not think Lundy should be convicted of murder on the strength of those cells (though he was not told about other evidence). The Privy Council said those notes should have been given to the defence, which might have challenged the expert evidence.

Lundy was found guilty again at a second trial in 2015 and his appeals were not upheld. His case is currently before the Criminal Cases Review Commission.

Arthur Allan Thomas

Arthur Allan Thomas was convicted of murdering Jeanette and Harvey Crewe in 1970. The 1980 Royal Commission into his case found that he was wrongly convicted, and that police had planted evidence against him. It also found that police held back half a dozen pieces of information that could have been useful to the defence, including from neighbours who heard gunshots on the night of the killing. Arthur Allan Thomas was pardoned in 1979.

Chris Kahui

Chris Kahui was accused of killing his three-month-old twin sons, Chris and Cru in 2006. He was found not guilty. In 2010, the Independent Police Conduct Authority criticised police for handing over evidence to him very late that suggested someone else had confessed.

Aitken case

Just as this trial was about to start in 2011, the prosecution gave the defence a big pile of previously unseen documents. Most of them were about police informants. In fact, seven different police informants had pointed the finger at various possible killers, and none of them were the defendants.

The trial had to be rescheduled. Over the next three months police disclosed hundreds more pages. Then, a week before the trial, another hundred pages. Then on the day of the trial, still more.

On the second day of the trial, a bombshell. Police revealed that relatives of one of the murder victims told police they saw him and his car at a service station - after he was supposed to be dead. Police did not check that out for a year and did not tell the defence about it until the trial.

A third trial was scheduled. A woman gave evidence that one of the defendants confessed to her that he and the two other defendants had taken the victim, and then he had shot the victim in the back of the head. During the trial, police handed over notes of an earlier interview with that witness. She did not say that he had done the shooting himself. She only said she thought he had done it.

In the end, the judge discharged the defendants because convicting them on the evidence would not have been safe.

The Bublitz case

Paul Bublitz and other defendants were prosecuted by the Financial Markets Authority for financial crimes. Eight months into the trial, in 2017, the prosecutor told the defence, for the first time, that it had held back more than 14,000 documents. The trial was aborted. Eventually the prosecution accepted that more than 5000 of the documents should be disclosed. At a retrial, Bublitz was found guilty on six charges, though two were set aside on appeal.

The Financial Markets Authority was ordered to pay $50,000 in costs as a penalty for not following the Criminal Disclosure Act.

S

S was charged with killing his son in 2018. S said the boy died from a fall. In the months leading up to the trial, the Crown provided a lot of information, including medical evidence, very late. Then, during the trial, the Crown turned over more police notebook entries and documents about its expert evidence, including one that revealed that one of its experts disagreed with the other Crown experts about a key point, and another that revealed that the some of the experts had changed their minds from their initial views. The Crown assured the judge all the disclosure was now finished. Then it found more, including police notebook entries, correspondence with experts and medical data.

There was a hung jury, and the Crown decided not to retry the case. In 2020, the police were ordered to pay $30,000 for these failures.

Alan Hall

Hall was convicted of murder in 1986. The Crown said he broke into the victim’s house, stabbed him and was seen fleeing the scene by a witness. What the jury was not told, because the defence was not told it either, was that the witness who saw him fleeing was 100 percent sure the person he saw was Māori. Hall is Pākehā. Nor did police disclose information about another suspect, because they decided they were satisfied with his alibi.

Last year, the Supreme Court unanimously quashed Hall’s murder conviction, saying the failures “must be the result of extreme incompetence or of a deliberate and wrongful strategy to secure conviction”.

Mr Lyttle Meets Mr Big

Written and presented by Steven Price

Executive Producers Justin Gregory, Katy Gosset & Tim Watkin

Director Duncan Smith

Music Ebony Lamb and Gram Antler

Images by Ebony Lamb. Design by Jarred Bishop

Supported by Michael and Suzanne and Borrin Foundation and Te Kauhanganui Tatai Ture, Faculty of Law, Victoria University of Wellington