Downside of deceit

By Timothy Moore

Law360 Canada (June 5, 2023, 2:51 PM EDT) --
Timothy Moore
Subterfuge has its place as a crime solving manoeuvre. Without responsible oversight however, the consequences of duplicity can be calamitous. For example, consider the case of R v. Lyttle, about which I have commented before.

David Lyttle had been building a house for Brett Hall on a remote property north of Wellington, New Zealand. Hall vanished on May 29, 2011, and Lyttle became an immediate suspect in his disappearance. Police interviewed him eight times during the next 10 weeks, culminating in a seven-hour interrogation on Aug. 8. He gave detailed descriptions of his actions at the time that Hall went missing but steadfastly denied having had anything to do with his absence. There was insufficient evidence to charge him with any crime.

In early 2014 a Mr. Big operation was launched, concluding with a “confession” to Mr. Big at the end of June 2014. The confession was bereft of confirmatory evidence. There was no body, no blood, no weapon, no witness and not much of a motive. Parts of the narrative were implausible or provably false. Lyttle was nevertheless found guilty of murder by a jury at the High Court in Wellington on Nov. 14, 2019.

In March 2021 the conviction was quashed and a new trial ordered. Justice Simon France characterized the conviction as a “miscarriage.” The Court of Appeal had been troubled by what they perceived to be numerous threats to the reliability of the statements made to Mr. Big. When the prosecution made known its intention to retry the case, the defence brought applications for (1) a dismissal of the charge on the basis of evidential insufficiency (s. 147) and (2) a stay of proceedings. The dismissal application was granted at the end of November 2021 (R. v. David Owen Lyttle [2021] NZHC 3519). By then more than 10 years had passed since the police first targeted David Lyttle as the murderer of Brett Hall.  

Three weeks after his conviction, his younger brother Dion, with whom he had been very close, committed suicide. A year later his mother died. “She basically gave up,” said his wife, Helen. “She was never the same once Dave was found guilty.” David didn’t attend her funeral because he didn’t want his children to see him in prison handcuffs. He believes today that had he not been imprisoned, his mother and brother would still be alive. He now has a deep and abiding distrust of the justice system.

In the Hart decision, Justice Andromache Karakatsanis expressed concern with state conduct that turns suspects’ day-to-day existence “into a piece of theatre in which they are unwitting participants” (R. v. Hart 2014 SCC 52). She went on to say that the potential damage arising from Mr. Big operations harms “ ... not only the suspect but the integrity of the justice system.”

The Lyttle and Hart cases are shining examples. They illustrate what research on the psychological impact of wrongful convictions has shown, namely that the sequelae appear to be “vast, severe, and long-lasting.” 

In the Netherlands, a disaster of a different sort reached its disturbing climax about a month ago. Joop M was convicted of money laundering and orchestrating the smuggling from South America of large amounts of cocaine destined for Germany through the port of Vlissingen. As part of their investigation in early 2020, the police surreptitiously purchased the house adjacent to Joop M’s in the luxury neighbourhood of Zevenbergschen Hoek. An undercover agent (Frans) moved into the house and contrived to become close friends with Joop M and his family. He formed an emotional bond with their 10-year-old son and eventually had an affair with Joop’s wife. Frans ultimately revealed the relationship (and his own distress) to his superiors, but ended up committing suicide in April 2021. At Joop M’s trial, the defence objected to the violation of the privacy of the suspect and his wife and son. The court found that the undercover agent had been insufficiently supervised, and that as a result, “standards of decency [had] been exceeded.” One year was deducted from the sentence. Frans’ suicide was not the only one attributed to oversight breakdown in the Special Investigations Service around that time.

As these cases demonstrate, the notion that deceit can be safely wielded with strategic precision in criminal investigations is belied by the false confessions that sometimes arise and, at times, even by the fatalities of the very agents of deceit themselves. 
Timothy Moore is professor emeritus, department of psychology, Glendon College, York University.

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