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Lyttle v R [2019] NZCA 329; [2019] 3 NZLR 636 (24 July 2019)

Last Updated: 16 May 2021

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^{Lyttle v R} 5

^{Court of Appeal CA263/2019; [2019] NZCA 329} 10
17, 24 July 2019
Collins, Lang and Woolford JJ

Criminal practice and procedure – Jurisdiction – Application for leave to ^{appeal when application for stay of prosecution declined – Whether High Court} 15

decision amenable to appeal – Charge had to be determined before statute

engaged – Whether application for stay resulted in determination of charge – Criminal Procedure Act 2011, s 296 – Senior Courts Act 2016, s 56 – Criminal Disclosure Act 2008.

^{Statutes – Interpretation – Jurisdiction – Whether court had jurisdiction to} 20

grant stay of criminal prosecution – Whether High Court decision not to stay prosecution appealable – Whether “relates” to determination of charge – “Relates” – Criminal Procedure Act 2011, s 296.

[Editorial note: Mr Lyttle was found guilty of murdering Mr Hall in a ^{subsequent trial, the verdict given on 14 November 2019.]} 25
In June 2014, Mr Lyttle was charged with having murdered Mr Hall in May 2011. The police investigations included a “Mr Big” operation (an operation involving undercover police officers engaging in a carefully orchestrated subterfuge, during which they befriend a suspect in order to entice them into ^{joining a fictitious criminal enterprise). During the operation, Mr Lyttle} 30
acknowledged killing Mr Hall and disposing of his body. His prosecution had
been delayed by repeated failures by prosecuting authorities, particularly the police, to comply with their obligations under the Criminal Disclosure Act 2008. The information that slowly emerged was important. It showed the police
^{had access to information that, if correct, suggested two or more other men may} 35
have been responsible for Mr Hall’s murder.
At least 15 substantive judgments had been delivered by the High Court, including bail applications, an application to change the venue of the trial, and three applications for a stay of the prosecution that were declined. Mr Lyttle ^{applied for leave to appeal the third of those applications, where Simon} 40
France J had concluded that whilst there was still a real risk that items of
potential significance to the defence had not been disclosed, the defence would not be significantly impeded by the likely non-disclosure of further information. He also concluded that there had not been a sufficient lack of
^{police investigation into alternative suspects to justify granting a stay, and that} 45
delay alone could not sustain a stay. Mr Lyttle’s application for leave to appeal identified five questions of law. Those questions raised two issues which were encapsulated by the following two questions:

(a) Did s 296 of the Criminal Procedure Act 2011 (the Act) confer

jurisdiction to hear an appeal on a question of law where the decision of the trial court resulted in dismissal of a pre-trial application to stay a prosecution?

(b) Did s 56 of the Senior Courts Act 2006 confer a separate jurisdiction

5 ^{to hear the proposed appeal?}
[Editorial note: as the Court did not consider that s 56 could apply due to the transitional issues, [16] and [37]–[39] of the decision are not reported.]
Section 296(3) provides:

Right of appeal

10. ^{The question of law in a first appeal under this subpart must} arise—

(a) in proceedings that relate to or follow the determination of the charge; or

(b) in the determination of the charge (including, without

15. ^{limitation, a conviction, an acquittal, the dismissal of the} charge under section 147, or a stay of prosecution).

Held: 1 The jurisdiction to grant a stay existed to enable a court to prevent the abuse of its own processes. The two bases on which a court could stay a criminal prosecution were:
20 ^{(a) that the defendant could not have a fair trial; and/or}
(b) that allowing the charge to be heard would undermine public confidence in the overall integrity of the criminal justice system.
To be appealable under s 296 of the Act, the question of law could not be one that arose from a jury verdict, or before the trial and which had already
25 ^{been decided under the appeal provisions dealing with pre-trial decisions. The} purpose of s 296 was to modify and simplify the case stated procedure previously found in s 380 of the Crimes Act 1961, and to continue the appeal provisions of s 381A of the Crimes Act. Section 296 of the Criminal Procedure Act was intended to minimise the opportunities to challenge pre-trial rulings
30 ^{and ensure that trials were heard expeditiously. The jurisdiction in s 296(3) was} only likely to apply in relation to decisions dealing with a defendant’s application to dismiss a charge or stay a prosecution where the prosecution wished to appeal a trial court’s decision dismissing a charge or staying a prosecution; or in rare cases where the defendant could demonstrate a trial
35 ^{court’s decision had effectively, resulted in a determination of the proceeding} (see [9], [15], [34], [35]).
2 The use of “relate” in s 296(3)(a) of the Act meant there had to be a close link or a “connection” between the proceeding and the determination of the charge. When the words “proceedings that relate to” were read in conjunction
40 ^{with the balance of s 296(3)(a), it was clear there had to have been a} “determination” of the charge before that section was engaged. Mr Lyttle’s proposed appeal was quite capable of being pursued as part of a post-trial general appeal without adverse effect (see [27], [28], [29], [30], [31]).

Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321 applied.

45. ^{3 Mr Lyttle could not demonstrate that the High Court decision had} effectively resulted in a determination of the proceeding. Therefore it was not amenable to an appeal under s 296(3) of the Act. The charge had to be determined (for example, the dismissal of a charge under s 147 or by a trial

court staying a proceeding) before s 296(3)(b) could apply. It was significant that s 296(3)(b) did not specifically provide for an appeal against the refusal to grant a stay or dismiss a charge (see [32], [33], [36]).

Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321 applied.

^{D (CA716/2015) v R [2016] NZCA 190 applied.} 5

Rowell v Commissioner of Inland Revenue [2016] NZCA 471 applied. Maangi v R [2017] NZCA 156, (2017) 28 CRNZ 465 distinguished. White v R [2019] NZSC 53 referred to.

Rangitonga v Parker (No 2) [2017] NZCA 47, [2017] NZAR 460. referred

^to. 10
Result: Application for leave to appeal declined. To preserve Mr Lyttle’s fair trial rights, order made prohibiting publication of judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial.

Other cases mentioned in judgment 15

Moevao v Department of Labour [1980] 1 NZLR 464 (CA).

R v Antonievic [2013] NZCA 483, [2013] 3 NZLR 806.

R v Grime [1985] NZCA 25; [1985] 2 NZLR 265 (CA).

R v Wichman [2015] NZSC 198, [2016] 1 NZLR 753.

^{Rangitonga v Parker [2015] NZHC 1772, [2016] 2 NZLR 73.} 20

Rangitonga v Parker [2016] NZCA 166, [2016] NZAR 768.

Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705.

Application

This was an application by David Owen Lyttle for leave to appeal against the ^{decision of Simon France J [2019] NZHC 1150, declining an application for a} 25
stay of prosecution following a charge for murder. The Crown was the
respondent.

CWJ Stevenson for David Owen Lyttle.

CA Brook and RK Thomson for the Crown.

^{Cur adv vult} 30

The judgment of Collins, Lang and Woolford JJ was delivered by

COLLINS J.

Introduction

• [1] The two issues raised by Mr Lyttle’s application for leave to appeal are ^{encapsulated in the following questions:} 35

(a) Does s 296 of the Criminal Procedure Act 2011 (the CPA) confer jurisdiction to hear an appeal in this case on a question of law where the decision in the trial court resulted in dismissal of a pre-trial application to stay a prosecution?

^{(b) Does s 56 of the Senior Courts Act 2016 (the SCA) confer a separate} 40

jurisdiction upon this Court to hear the proposed appeal in this case?

• [2] Section 296 of the CPA permits a prosecutor or a defendant to seek leave to appeal, on a question of law, from a ruling of a trial court. The question of law must, however, arise:¹

(a) in proceedings that relate to or follow the determination of the

5 ^{charge; or}

(b) in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).

The answer to the question posed in [1(a)] hinges upon whether, in this case,
10 ^{the pre-trial decision dismissing Mr Lyttle’s application to stay the prosecution} related “to ... the determination of the charge” or “in the determination of the charge”.

• [3] Section 56(1) of the SCA provides:

(1) The Court of Appeal may hear and determine appeals—
15 ^{(a) from a judgment, decree, or order of the High Court:}
(b) under the Criminal Procedure Act 2011:
...
The answer to the question posed in [1(b)] depends on whether the SCA applies in this case and in particular, whether the transitional provisions of the
20 ^{SCA which we explain at [16], mean that Act cannot apply to Mr Lyttle’s case.}

Background

• [4] Mr Lyttle is charged with having murdered Mr Hall in May 2011. The police investigations included what is euphemistically referred to as a “Mr Big” operation during which Mr Lyttle acknowledged killing Mr Hall

25 ^{and disposing of his body. Mr Hall’s body has not been found.}

• [5] Mr Big operations involve undercover police officers engaging in a carefully orchestrated subterfuge during which they befriend a suspect in order to entice him or her into joining a fictitious criminal enterprise.² As part of the recruitment exercise, the suspect is skilfully questioned about their past

30 ^{criminal activities. It was during this phase of the operation that Mr Lyttle} made his admissions. Absent those admissions the case against Mr Lyttle is weakened, although not fatally because there is evidence that the Crown intends to adduce of Mr Lyttle having allegedly made admissions to other witnesses not associated with the Mr Big operation.
35 ^{[6] Mr Lyttle was charged on 28 June 2014. His prosecution has, however,} been marred by delay, a significant portion of which can be attributed to repeated failures by prosecuting authorities, and in particular, the police, to comply with their obligations under the Criminal Disclosure Act 2008. On two occasions, trial dates have been postponed when it became clear the police had
40 ^{not disclosed important information to Mr Lyttle.3 When, in October 2018 the} trial did commence, it had to be abandoned after one week when further information emerged which demonstrated the prosecuting authorities had still failed to comply with their disclosure obligations.⁴

1. Criminal Procedure Act 2011, s 296(3).
2. See generally, R v Wichman [2015] NZSC 198, [2016] 1 NZLR 753.
3. Trials scheduled to commence on 15 May 2017 and 2 November 2017 had to be postponed.
4. R v Lyttle [2018] NZHC 2689.

• [7] The information that slowly emerged was important. It showed the police had access to information that, if correct, suggested two or more other men may have been responsible for Mr Hall’s murder.
• [8] There have been at least 15 substantive judgments delivered so far by the ^{High Court in this case.5 Those judgments have dealt with a variety of issues,} 5 including bail applications and an application to change the venue of the trial.

The decision that Mr Lyttle wishes to challenge concerned his third application for a stay of the prosecution.⁶

• [9] The jurisdiction to grant a stay exists to enable a court to prevent the ^{abuse of its own processes.7 There are two bases upon which a court may stay} 10 a criminal prosecution in New Zealand, namely where:⁸

(a) the defendant cannot have a fair trial; and/or

(b) allowing the charge to be heard would, in the circumstances, undermine public confidence in the overall integrity of the criminal ^{justice system.} 15

• [10] Applications to stay a prosecution may therefore be distinguished from applications to dismiss a charge under s 147 of the CPA (previously s 347 of the Crimes Act 1961) which, in the case of a trial by jury, may be granted if “the Judge is satisfied that, as a matter of law, a properly directed jury could not

^{reasonably convict the defendant”.9} 20

• [11] We need refer to just four of the High Court judgments delivered to date in this case:

(a) In the first of those judgments, Simon France J declined an application challenging the admissibility of the evidence of the admissions ^{obtained during the Mr Big operation.10 An appeal from that decision} 25

was dismissed by this Court.¹¹ An application for leave to appeal to
the Supreme Court was declined by that Court.¹²

(b) In the second judgment Simon France J declined an application to stay the prosecution that was based upon failures by the prosecuting

^{authority to provide proper disclosure.13 The trial, which at that time} 30
was scheduled to commence in November 2017, was adjourned to enable the prosecution to comply with its disclosure obligations. Simon France J was so concerned about the deficiencies in disclosure that he ordered an audit of the disclosure procedures followed by the
^{police in this case.} 35

(c) The third judgment also arose from an application to stay the charge that was based on inadequate disclosure by the prosecution.¹⁴ That application was heard just before the trial commenced in October 2018. Although Simon France J declined that application, the trial had

5. There have also been five judgments from the Court of Appeal and two leave judgments from the Supreme Court.
6. R v Lyttle [2019] NZHC 1150 [High Court judgment].
7. Moevao v Department of Labour [1980] 1 NZLR 464 (CA).
8. R v Antonievic [2013] NZCA 483, [2013] 3 NZLR 806 at [48]; and Wilson v R [2015] NZSC 189, [2016] 1 NZLR 705 at [40].
9. Criminal Procedure Act 2011, s 147(4)(c).
10. R v Lyttle [2016] NZHC 774.
11. Lyttle v R [2017] NZCA 245.
12. Lyttle v R [2017] NZSC 120.
13. R v Lyttle [2017] NZHC 2631.
14. R v Lyttle [2018] NZHC 2648.

to be abandoned a week after it commenced when further information came to light that had not previously been disclosed by the police.¹⁵

(d) The final judgment concerned a third application to stay the prosecution.¹⁶ It is that judgment which is the genesis of the

5. ^{application for leave to appeal that we address in this decision. The} application to stay was based on four grounds:

(i) the risk of a false confession having been obtained through the Mr Big operation;

(ii) inadequate disclosure;

10. ^{(iii) concerns about the inadequacy of other aspects of the police} investigation; and

(iv) delay.

• [12] Simon France J concluded that there was still a real risk that items of potential significance to the defence had not been disclosed. This conclusion

15 ^{reflected the Judge’s concerns about the conduct of the police, which included} “inadequate systems, indefensible decisions by individual officers, a confusion over disclosure principles, and no apparent willingness to take advice”.¹⁷ This risk was said by the Judge to be particularly significant in relation to the potential for false confessions to have been extracted through the Mr Big
20 ^{operation.18 The Judge reasoned, however, that as the confessions have already} been determined to be admissible by this Court it should be for the jury to decide if it accepted Mr Lyttle had genuinely admitted to killing Mr Hall. Simon France J also considered that any non-disclosed material was likely to be of a similar nature to what was already known and that the defence would not
25 ^{be significantly impeded by the likely non-disclosure of further information.19} The Judge said there had not been a sufficient lack of police investigation into alternative suspects to justify granting a stay.²⁰ He also concluded that although the delay in bringing the case to trial was undoubtedly long, delay alone could not sustain a stay.²¹
30 ^{[13] The notice of application for leave to appeal identifies the following five} questions of law:

(a) Can a fair trial be guaranteed when the Court cannot be confident that the prosecuting authorities have complied with their disclosure obligations?

35. ^{(b) Do the known failures of disclosure undermine the integrity of the} criminal justice system?

(c) Is there a common law duty on the police to investigate responsibly?

(d) Is it appropriate to consider the cumulative impact of failures of disclosure, investigation and delay on whether the integrity of the trial

40 ^{process has been compromised?}

(e) Was Simon France J plainly wrong to decline a stay of proceeding?

15. R v Lyttle, above n 4.
16. High Court judgment, above n 6. 17 At [86(a)] to [86(b)].

18 At [41].

19 At [122(d)] and [124].

20 At [100].

21 At [107].

Mr Stevenson, counsel for Mr Lyttle, explained in his oral submissions that the first two questions were the primary focus of Mr Lyttle’s application for leave to appeal.

Legislation

• ^{[14] The ability to appeal pre-trial decisions in jury trial cases is tightly} 5 prescribed by ss 217, 218 and 296 of the CPA. Sections 217 and 218 are in Part 6, subPart 2 of the CPA, which deals only with appeals from pre-trial decisions. Section 217(2) lists 12 types of pre-trial decisions in jury trial cases that may, with leave, be appealed by a prosecutor or a defendant.

^{Section 218(2) lists two types of pre-trial decisions that may, with leave, be} 10 appealed by a defendant in a jury trial case. Sections 217 and 218 do not refer
to decisions declining an application to stay a prosecution and are therefore not engaged in this case.

• ^[15] Section 296, which is in pt 6, subpart 8 of the CPA, deals only with ^{appeals on questions of law. That section is also prescriptive, in that it refers to} 15 questions of law that satisfy either of the two limbs we have set out at [2]. In addition, to be an appealable question of law under s 296, the question must

not be one that arises from a jury verdict, or one that arose before the trial and which has already been decided under the appeal provisions dealing with
^{pre-trial decisions.22 This later requirement reduces any overlap between} 20 general appeals against conviction and appeals on questions of law under
s 296. It also ensures there is no room for multiple appeals in relation to pre-trial decisions governed by ss 217 and 218 of the CPA.

[Editorial note: [16] was not reported.]

Authorities on the scope of s 296 of the CPA 25

• [17] There are three decisions of this Court that examine the scope of s 296 of the CPA and a leave decision of the Supreme Court that has examined the key judgments of this Court. There are two other judgments of this Court that were referred to in submissions. It is convenient to first examine, in

^{chronological sequence, the judgments of this Court.} 30

Anderson v R

• [18] In Anderson v R, three permanent members of this Court held there is jurisdiction to consider an appeal under s 296 of the CPA in relation to a trial court’s pre-trial decision not to grant a defendant leave to change her election

^{to be tried by a Judge sitting alone instead of by a jury.25} 35

• [19] The Court explained that:

(a) It was important when assessing the scope of s 296 of the CPA to have regard to whether the appeal rights under s 296 are the only effective remedy:²⁶

^{If, for example, there is a decision not to dismiss a charge} 40
under s 147 of the [CPA] that can be remedied after the trial by an appeal against conviction on the basis there has been a miscarriage of justice.

(b) There would be little meaningful opportunity to address the issues

22 Criminal Procedure Act 2011, s 296(4).

25 Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321.

26 At [46].

raised by the proposed appeal in the event that Ms Anderson was convicted.²⁷ The proposed appeal therefore satisfied the jurisdictional criteria in s 296(3) of the CPA.

D (CA716/2015) v R

5 ^{[20] In D (CA716/2015) v R, the applicant sought to appeal, pursuant to} s 296 of the CPA, a decision of the District Court dismissing a pre-trial application to discharge the defendant.²⁸ In declining the application for leave to appeal, three permanent members of this Court distinguished Anderson on the basis that the decision declining to discharge D did not affect his appeal
10 ^{rights if he should be convicted.29 The Court explained that s 296(3) does not} apply to cases in which the trial court declines to discharge a defendant as the effect of such a decision is to allow the prosecution to continue. Section 296(3)(b) confers a right of appeal on the prosecution to appeal a stay or discharge on questions of law:³⁰

15. ^{... because the effect of the stay or dismissal decision is to bring an end to} the prosecution. In contrast, the refusal to grant a stay is not a “determination” of the proceeding. It is the opposite. It means the proceeding will continue.

Rowell v Cmr of Inland Revenue

20 ^{[21] In Rowell v Commissioner of Inland Revenue, the applicant sought leave} to appeal under s 296 of the CPA from a decision of the District Court declining his application under s 147 to dismiss charges under the Tax Administration Act 1994.³¹ A Divisional Court held that the reasoning of D (CA716/2015) applied to a decision declining an application for a discharge
25 ^{under s 147 of the CPA.32}

Rangitonga v Parker

• [22] Mr Stevenson relied upon another Divisional Court’s judgment in Rangitonga v Parker, in which leave was granted to hear an appeal against a pre-trial decision declining to stay a private prosecution.³³ In a previous

30 ^{pre-trial application in those proceedings, the High Court granted leave under} s 296 of the CPA to hear the first appeal against the decision not to discharge the defendant on the basis of previous acquittal, and concluded the appellant had not been previously acquitted.³⁴ In the second appeal this Court agreed with the High Court’s assessment of the merits.³⁵ There was no reference to
35 ^{s 296 of the CPA in either of this Court’s judgments and no consideration} appears to have been given to the jurisdictional issues examined in the other judgments of this Court that we have summarised at [18]–[21].

Maangi v R

• [23] This Court’s decision in Maangi v R was also referred to by counsel.

40 ^{That was an appeal from the decision to grant leave to the prosecutor to}

27 At [57].

28 D (CA716/2015) v R [2016] NZCA 190.

29 At [19]–[20].

30 At [14].

31 Rowell v Commissioner of Inland Revenue [2016] NZCA 471. 32 At [22]–[24].

33. Rangitonga v Parker (No 2) [2017] NZCA 47, [2017] NZAR 460.
34. Rangitonga v Parker [2015] NZHC 1772, [2016] 2 NZLR 73.
35. Rangitonga v Parker [2016] NZCA 166, [2016] NZAR 768.

withdraw charges against Ms Maangi before determination of a hearing under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 about whether there was sufficient evidence against her.³⁶ Dismissal of the charges under s 147 of the CPA is a mandatory consequence if the court is not satisfied
^{of the sufficiency of the evidence.37 Leave was granted under s 296(3) as the} 5 questions of law were sufficiently closely connected to the determination of the charge. This decision concerned a mandatory dismissal of the charges, as opposed to the discretionary decision to stay a proceeding or dismiss the charges under s 147 of the CPA. This decision is therefore of limited assistance
^{to Mr Lyttle’s case.} 10

White v R

• [24] In White v R, the applicant sought leave under s 296 of the CPA to appeal directly to the Supreme Court from a decision of the District Court dismissing his pre-trial application for a discharge under s 147 of the CPA.³⁸

^{The Supreme Court decided the application did not satisfy the criteria for leave} 15
to appeal to that Court. In doing so, the Court referred to Anderson, D (CA716/2015) and Rowell, and observed that this Court had “carefully considered both the language and purpose of s 296 as well as the legislative history” when concluding that pre-trial decisions declining applications to ^{dismiss prosecutions were not amenable to appeal under s 296.39} 20

Legislative context

• [25] Section 296 of the CPA replaced the case stated procedure in s 380 of the Crimes Act 1961, which was the previous mechanism for appealing questions of law.⁴⁰ The case stated procedure required the trial judge to reserve

^{a question of law for the opinion of the Court of Appeal. Challenges by the} 25
prosecution to a question of law arising from the discharge of a defendant were not provided for until 2008, when s 381A of the Crimes Act was enacted. Prior to then, the Court of Appeal had decided that such challenges were beyond the scope of the case stated procedure.⁴¹ Section 381A followed a Law
^{Commission recommendation that the prosecution have an ability to appeal,} 30
with leave, on a question of law against the grant of a discharge. The Law Commission said:⁴²
The Crown is in a different position [from a defendant] because it has no right of general appeal at the end of a trial and currently has no redress ^{when a [judge] orders a [s 147] discharge pre-trial.} 35
Section 381A was extended to include stays of prosecution at the Select Committee stage.⁴³

• [26] When s 296 of the CPA was enacted, however, it provided that both a prosecutor and a defendant could, with leave, appeal on a question of law

36 Maangi v R [2017] NZCA 156, (2017) 28 CRNZ 465.

37. Criminal Procedure (Mentally Impaired Persons) Act 2003, s 13(2).
38. White v R [2019] NZSC 53. 39 At [9].

40 The practice of a trial judge reserving a question of law and stating a case for the opinion of the Court of Appeal has existed since before the Criminal Code Act 1893, see Christopher Corns and Douglas Ewen Criminal Appeals and Reviews in New Zealand (Thomson Reuters, Wellington, 2019) at [2.9.1] and [7.9.1].

41 R v Grime [1985] NZCA 25; [1985] 2 NZLR 265 (CA) at 267–269.

42. Law Commission Criminal Prosecution (NZLC R66, 2000) at [160].
43. Criminal Procedure Bill 2004 (158-2) (select committee report) at 12.

against a ruling by a trial court “in the determination of the charge”, “including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution”.⁴⁴

Analysis

5 ^{Textual analysis of s 296(3)(a) of the CPA}

• [27] The transitional verb “relate” in s 296(3)(a) of the CPA means there has to be a close link or a “connection” between the proceeding and the determination of the charge.⁴⁵ When the words “proceeding that relate to” are read in conjunction with the balance of s 296(3)(a), it is clear there has to have

10 ^{been a “determination” of the charge before s 296(3)(a) is engaged.}

• [28] The contention in Mr Stevenson’s submissions that it is sufficient for there to have simply been an application to determine a charge cannot be correct, because that interpretation involves a reframing of s 296(3)(a) so as to refer to “proceedings that relate to or follow an application to determine a

15. ^{charge”. Parliament deliberately did not use that language because it wished to} ensure that s 296(3)(a) was only engaged when a charge had been determined.
    • [29] As noted at [2] the key issue is whether the decision dismissing Mr Lyttle’s stay application resulted in the determination of the charge. In the context of s 296(3)(a) determination means “[a] bringing or coming to an end;

20 ^{a termination”.46}

• [30] In assessing whether the decision in question determined the prosecution it is necessary to consider whether or not the matters that Mr Lyttle wishes to challenge in this Court are realistically capable of being pursued as part of a general appeal in the event that he is convicted. While the matters he wishes to

25 ^{pursue are, arguably, less capable of assessment post-trial than issues relating} to, for example, sufficiency of evidence, we are nevertheless satisfied that Mr Lyttle’s proposed appeal is quite capable of being pursued as part of a post-trial general appeal.

• [31] We reach this conclusion because the issues raised by the five questions

30. ^{of law we have set out at [13] are all as capable of being considered after trial} as they are at this juncture:

(a) We fully accept the importance of prosecuting authorities discharging their disclosure obligations, and that, in some cases, a failure to do so may result in a prosecution being dismissed because of a failure to

35. ^{provide a defendant with a fair trial. Nevertheless, the arguments} considered by Simon France J which formed the basis of the first and second proposed questions in this case will not be adversely affected if they need to be pursued as part of a general appeal, post-trial.

(b) The other three questions we have posed at [13](c), (d) and (e) will

40. ^{also not be adversely affected if Mr Lyttle needs to pursue them} post-trial.

44. Criminal Procedure Act 2011, s 296(3)(b).
45. Anderson v R, above n 25, at [41].
46. Shorter Oxford English Dictionary (5th ed, Oxford University Press, Oxford, 2002) at 659.

Textual analysis of s 296(3)(b) of the CPA

• [32] The plain meaning of s 296(3)(b) is that, before that subsection comes into play, there must have been a determination of the charge by, for example, the dismissal of a charge under s 147 of the CPA or by a trial court staying a

^proceeding. 5

• [33] As noted in D (CA716/2015), it is significant that s 296(3)(b) does not specifically provide for an appeal against the refusal to grant a stay or dismiss a charge.⁴⁷ The absence of any express change to the already well-established position regarding appeals against refusals of stay and discharges, indicates that

^{Parliament had no intention to make the changes advocated by} 10
Mr Stevenson.⁴⁸

Purpose of the provisions

• [34] The purpose of s 296 of the CPA was to modify the case stated procedure previously found in s 380 of the Crimes Act and to continue the ^{appeal provisions in s 381A of that Act. Parliament sought to simplify the} 15

procedure rather than affect substantive appeal rights.⁴⁹ Section 296 reflects
Parliament’s intention to minimise the opportunities to challenge pre-trial rulings and ensure that trials are heard expeditiously. The corollary of this objective is that a defendant should have every reasonable opportunity to ^{pursue a general appeal in the event that he or she is convicted.} 20

• [35] The jurisdiction in s 296(3) is only likely to apply in relation to

decisions dealing with a defendant’s application to dismiss a charge or stay a prosecution where:

(a) the prosecution wishes to appeal a trial court’s decision dismissing a ^{charge or staying a prosecution; or} 25

(b) in rare cases where the defendant can demonstrate a trial court’s

decision has, effectively, resulted in a determination of the proceeding.

• [36] This analysis aligns with the interpretation of s 296(3) favoured by this Court in Anderson, D (CA715/2016) and Rowell and leads us to conclude that

^{as Mr Lyttle cannot demonstrate the High Court decision has effectively} 30
resulted in a determination of the proceeding, it is not amenable to an appeal under 296(3) of the CPA.

[Editorial note: [37]–[39] were not reported.]

Result

• ^{[40] The application for leave to appeal is declined.} 35
• ^[41] To preserve Mr Lyttle’s fair trial rights, we make an order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in a law report or a law digest is ^permitted. 40

Orders

• (A) The application for leave to appeal is declined.

47 D (CA716/2015) v R, above n 28, at [14].

48 At [22].

49 Anderson v R, above n 25, at [55]; Criminal Procedure (Reform and Modernisation) Bill 2010(243–1) (explanatory note) at 12–13; and Ministry of Justice and Law Commission Departmental Report for the Justice and Electoral Committee: Criminal Procedure (Reform and Modernisation) Bill (16 May 2011) at [1198] and [1200]–[1201].

• (B) Order prohibiting publication of the judgment and any part of the proceedings (including the result) in news media or on the internet or other publicly available database until final disposition of trial. Publication in a law report or a law digest is permitted.

5 ^{Solicitors for the Crown: Crown Law Offıce (Wellington).}

Reported by: Edith PA Shelton, Barrister