LYTTELTON v R [2018] NZCA 243

LYTTELTON v R [2018] NZCA 243 [6 July 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA254/2016[2018] NZCA 243BETWEEN MARTIN VICTOR LYTTELTONAppellantAND THE QUEENRespondentHearing: 17 May 2018Court: Miller, Ellis & Woolford JJCounsel: Appellant in personJEL Carruthers for RespondentJudgment: 6 July 2018 at 11.30 amJUDGMENT OF THE COURTA The application to adduce further evidence on appeal is granted.B The application for recusal is declined.C The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Miller J)Introduction[1] Martin Lyttelton was convicted after trial before Asher J and a jury of theattempted murder of his former business partner Richard Ord, of causing Mr Ord'spartner Colleen Fenton grievous bodily harm with intent to injure, and of theaggravated burglary of their home by entering it armed and with intent to commit acrime. The Judge sentenced him to seven years' imprisonment.1 He now appeals bothconviction and sentence.[2] At trial Mr Lyttelton represented himself with the assistance of counselappointed by the Court, Mr Gibson.2 Speaking generally, it was not in dispute that hehad done the acts complained of. His defence rested on his state of mind. He was inthe grip of a severe depressive illness which may have been brought on by setbacks inlitigation with Mr Ord, and he was also affected by prescription medications andalcohol he had taken in a suicide attempt around one and a half days prior. Hemaintained that he was so impaired that he did not, indeed could not, form the specificintent required for each charge; further, some of his acts were done automatically asMr Ord grappled with him. He also contended that he actually intended to commitsuicide in Mr Ord's presence.[3] The acts concerned happened on 10 April 2008 and the trial was not held untilMarch 2016. In the meantime Mr Lyttelton had pleaded guilty and been sentenced byWylie J to five years and 11 months' imprisonment.3 That sentence naturally includedan allowance for his guilty pleas. This Court allowed him to withdraw the pleas andset aside the convictions and ordered a retrial.4 That was done because the Court foundthat despite clear legal advice he had failed to appreciate that he could not plead guiltyand then dispute guilt at a sentencing hearing, and on the material before the Court atthat time it could not be said that he had no defence.5Recusal[4] Shortly before the hearing Mr Lyttelton asked that Miller J recuse himselfbecause he delivered this Court's judgment on the first appeal. Mr Lyttelton submittedthat Asher J was led into error by some of this Court's reasoning: for example, thisCourt considered insanity and automatism were not available defences on the factsand Asher J did not leave them to the jury. Miller J had subsequently declined to1 R v Lyttelton [2016] NZHC 1041 [Asher J sentencing].2 Mr Gibson was acting in what would now be called a standby capacity: see Fahey v R [2017]NZCA 596, [2018] 2 NZLR 392.3 R v Lyttelton HC Auckland CRI-2008-044-9465, 31 March 2010.4 Lyttelton v R [2014] NZCA 638 [First Court of Appeal judgment].5 At [70]–[72] and [80]–[87].provide Mr Lyttelton with a transcript of the hearing, which would have shown thathe indicated he intended to call expert toxicology evidence at the trial. Mr Lytteltonwas able to, and did, call such evidence at trial, but he submitted that Asher J attachedno weight to it. Lastly, this Court described the drug levels in his blood as therapeuticbut failed to find that therapeutic levels of Zopiclone may render a person incapable.[5] We declined the application after hearing from Mr Lyttelton and Mr Carruthers(for the Crown), who opposed it. Absent proper grounds for recusal a judge has a dutyto sit. Here Mr Lyttelton invoked reasonable apprehension of bias. The standard isthat of the objective and informed observer.6 It is settled law that prior involvementin the same appeal, still less a different one, does not in itself justify recusal.7 Nor isrecusal ordinarily justified if the appellant wishes to argue that a previous decision ofthe judge was wrong.8[6] Mr Lyttelton pointed to nothing about the last appeal that suggests apparentbias might affect this one. At the last hearing the Court did not have a full evidentialrecord, since he had pleaded guilty. It relied on the limited facts and expert evidencein the case on appeal then before it. It accepted Mr Lyttelton's account of hismisunderstanding about the effect of a guilty plea.9 It assessed the defences becausethere could be no miscarriage of justice if none was viable.10 It identified no evidentialfoundation for the defences of insanity or automatism.11 (Mr Lyttelton had acceptedin argument that no expert considered him insane, and none of the experts suggestedautomatism.) The Court found that Mr Lyttelton had an available defence, lack ofspecific intent. It did not consider that defence strong having regard to a factualnarrative that the experienced counsel who had advised him to plead guilty had fairlycharacterised as "purposeful". But it accepted that a jury may have been left unsure,and so sent him for trial.126 Saxmere Co Ltd v Wool Board Disestablishment Co Ltd [2009] NZSC 72, [2010] 1 NZLR 35 at[3]–[4].7 Jessop v R [2007] NZSC 96 at [6]–[7].8 Locabail (UK) Ltd v Bayfield Properties Ltd [2000] QB 451 (CA) at 480; and A (SC106/2015)v R [2016] NZSC 31 at [18]–[21].9 First Court of Appeal judgment, above n 4, at [70]–[72].10 At [80].11 At [56] and [81].12 At [82]–[87].[7] It is to state the obvious to say that, a trial having been ordered, Mr Lytteltoncould place before the jury any defence available to him in law and adduce anyevidence, whether factual or expert, that was relevant and admissible. We did notunderstand him to argue otherwise. Rather, he argued that Asher J failed to appreciatethat such was the point and effect of the Court's judgment. We will assess that claimon its merits. It does not supply grounds for recusal.The Crown narrative[8] The Crown adopted the narrative given by Asher J at sentencing. The Judgerecorded that much of it was not in dispute or necessarily entailed acceptance of theevidence of Mr Ord, whom the Judge also found a truthful and accurate witness.13[9] Asher J explained that about 2000 a successful business relationship withMr Ord began to sour badly, leading to extensive litigation. By early 2008Mr Lyttelton had become depressed and preoccupied with the dispute and believedthat Mr Ord had ruined his life. At the time of the offences he was suffering from amajor depressive illness. The Judge then recorded the sequence of events:[10] Two days before the events in question, which took place on 10 April2008, you purchased a .410 single action shotgun, two boxes of ammunitionand a skinning knife. The shotgun, which could take only a single shotguncartridge, had to be broken open, then the cartridge had to be manuallyinserted, it then had to be shut, and finally manually cocked. Only then whenthese steps had been taken could it be fired.[11] The knife had a blade of approximately 10 centimetres. It was a widestrong blade and came to a very sharp point at the end. Needless to say boththe gun and the knife were well able to inflict a fatal wound.[12] On the same day after you had purchased these items you met a friendfor coffee. You told your friend that you were feeling suicidal. The friendtook you to a doctor who prescribed an antidepressant, Paroxetine, andZopiclone sleeping pills. The sleeping pills were not to be taken with alcohol.That night you went home. You wrote a suicide note. You then consumed 14Zopiclone and six Paroxetine tablets. You also consumed a considerablequantity of wine. You went to bed expecting to die. This was a genuinesuicide attempt.[13] The following morning your wife tried to wake you. You were latervisited by the same friend who had been with you the day before.Unsurprisingly given what you had consumed, you were groggy and unableto converse or function. You largely slept through that day and the next night.13 Asher J sentencing, above n 1, at [8].You finally came to when you were woken by your wife at about 7 am onThursday, 10 April 2008.[14] At about 9.15 am that morning you left home taking in your car theshotgun, the full box of cartridges and the skinning knife. You told your wifethat you were going to clear the mail and do some errands. It was yourevidence at the trial, which I accept, that you went to the Auckland Domain,apparently intending to commit suicide there. You went down to a private partof the domain, but once you were there you changed your mind. It was at thisfateful point that the events immediately leading to the offending began. Youdecided to drive to Mr Ord's residence in Browns Bay on the North Shore.You drove to his home. You found the front door and garage to be open.Mr Ord and his partner Ms Fenton were upstairs at the time.[15] You proceeded to take the shotgun, six cartridges and the knife youhad just purchased. You entered the house. Having done so you proceeded towalk slowly up the stairs holding the shotgun. At this stage, given the eventsthat followed, the shotgun was clearly loaded and able to be fired, although Iam not certain whether it would have been cocked at that point. Ms Fentonbecame aware that someone had entered the house, and looking down into thestairwell. She could see you coming up. You did not see her. She quietly andimmediately explained to Mr Ord that you were there and they both went intothe office, which was above the stairs on that higher floor, and shut the door.The office contained a computer and was used by them for office work.Ms Fenton was positioned near the door handle holding the door to resistentry. Mr Ord was also near the door but further into the room, and rang 111.[16] When you got to the top of the stairs it seems that you walked aroundthrough some rooms before deciding that Mr Ord must be inside the office.There is opaque glass for part of the wall and shadowy shapes can be seen onthe inside of the room from the outside hallway. You proceeded to try andopen the door by turning the door handle but found that there was resistanceand you could not do so.[17] At this point you took the shotgun and fired a shot from it through thedoor. The shotgun had either been cocked at an earlier time, or was cockedimmediately before you fired that shot. The shot punched a considerable holethrough the door in a position some inches below the door handle. It hitMs Fenton, blowing a major hole in her thigh and significantly damaging herfemoral artery. She fell to the floor, bleeding profusely. You then, standingby the door in the hallway, proceeded to reload the shotgun. It is clear fromwhat followed that you successfully reloaded the shotgun and cocked it.[18] In the meantime Mr Ord decided that he would not stand there andwait for you, and he opened the door and you fell together and a strugglecommenced. You stumbled into the room. There was grappling to control thegun. A shot went off hitting the wall. You and Mr Ord proceeded to wrestleand came out of the room and into the area above the stairs, and then partlysmashing through the balustrade, fell or tumbled down the stairs into the frontentrance area. Mr Ord throughout managed to keep a grip on the gun. Theposition arose whereby you were being held by him against the doorframe andwall, and he was directly behind you pinning you there. You both had a gripon the gun. You were both at a physical impasse.[19] At that point, you reached down into your right trouser pocket lettinggo of the gun. You pulled out the skinning knife. Using a stabbing movementgoing around your front, stabbing backwards, you directed three or four stabthrusts towards Mr Ord's stomach area. The thrusts missed Mr Ord but hedescribed them going closely past his side. The struggle then turned into astruggle to control the knife. Mr Ord suffered a number of cuts to his hands.Eventually you stopped struggling as Mr Ord held you and you relinquishedthe knife. During the struggle and the following conversations you told MrOrd that he had ruined your life. When the fight ended and you stoppedstruggling you said you had to leave now.The defence narrative[10] Immediately after the Crown opening, Mr Lyttelton explained to the jury in abrief opening statement that there was very little dispute about the series of events thatoccurred at the Ord house on the morning of 10 April. Rather, the dispute between theCrown and defence centred on Mr Lyttelton's intention. He said that he went to thehouse to commit suicide in front of Mr Ord and was not acting rationally or with intentto hurt Ms Fenton. His opening address at the commencement of the defence casealso focused on his state of mind.[11] Mr Lyttelton nonetheless takes issue with the evidence of what happened in theoffice. The differences focus on the inferences about intent and mental state that mightbe taken from conduct. In closing at trial, and before us, he contended that he wasfiring at the door handle but missed, striking the door in a different place, and thatMr Ord then opened the door and Mr Lyttelton had fallen into the room, where Mr Ordattacked him from behind. Everything that followed was an instinctive response toMr Ord's attack.Grounds of appeal[12] Mr Lyttelton's grounds of appeal and submissions were somewhat discursiveand repetitive. We summarise them as follows:(a) the Judge failed to identify and put to the jury defences of automatismand insanity;(b) the Judge also failed to explain that Mr Lyttelton may have lacked therequisite intent, which required that the jury be told about the legaldefinitions of intent, mens rea and actus reus;(c) the Judge failed to explain that intoxication can preclude intent;(d) the Judge failed to sum up the defence case adequately;(e) Mr Ord committed perjury in his evidence and the Crown and policeknowingly aided and abetted him in this offence;(f) the Crown led the Judge and jury into error by calling the evidence ofDr Peter Dean;(g) the Crown and the ESR misled the Judge and jury regarding thedirection of the shot into the home office; and(h) the verdicts were unreasonable.[13] With respect to sentence, Mr Lyttelton complains that he was entitled to adisputed-facts hearing under s 24 of the Sentencing Act 2002, but was denied it, thatthe sentence was in error as a result, and that the sentence, which has now been served,was excessive.The evidence at trial[14] The jury heard from all three people who were in the home office at the time:Mr Ord, Ms Fenton and Mr Lyttelton. A number of witnesses were called whoseevidence was principally relevant to Mr Lyttelton's mental state:(a) police officers who attended the scene and the police doctor whoexamined Mr Lyttelton;(b) Dr Peter Dean, a clinical psychiatrist who expressed an opinion aboutMr Lyttelton's mental state and the effect of drugs upon him;(c) Dr Helen Poulsen, an ESR scientist who gave evidence that a bloodsample taken on arrest disclosed therapeutic levels of Zopiclone and nomeasurable levels of Paroxetine;(d) Dr Ian Goodwin, a clinical psychiatrist who had examined Mr Lytteltonin 2008 and continued to treat him afterward;(e) Dr David Menkes, an academic psychiatrist who gave evidence aboutthe impact of alcohol, Zopiclone and Paroxetine; and(f) Mr Lyttelton's wife and daughter.[15] Of the experts, Dr Goodwin and Dr Menkes were called for the defence.Mr Lyttelton was also permitted to adduce the reports of Professor Mullen andDr Greg McCormick, who had assessed him before his first trial. Neither wasavailable to give oral evidence.Mental state defences: submissions[16] Before considering how the various mental state defences were dealt with attrial, we summarise the positions of each side about them. Mr Lyttelton founded hisargument on a close and intelligent reading of the authorities, notably Police v Banninwhich contains a valuable discussion of automatism, insanity and intent.14 Reduced toits essentials, his argument may be summarised as:(a) The prosecution must prove mens rea, which requires both that the actbe willed and that the accused act with any ulterior or specific intentrequired by the particular offence.(b) Section 20 of the Crimes Act 1961 preserves common law defencesincluding automatism, which may be defined as unconsciousinvoluntary action.15 Automatism may be caused by conditionsexternal to the accused, such as intoxication, or a blow to the head, or14 Police v Bannin [1991] 2 NZLR 237 (HC).15 The Queen v Cottle [1958] NZLR 999 (CA) at 1007 per Gresson P.by internal conditions that amount to a disease of the mind.16 In thisrespect it differs from insanity, which must be attributed to a disease ofthe mind having some internal cause.17 It is for the prosecution todisprove automatism, but only if there is an evidential foundation forit.18(c) Where an accused who acted in a state of automatism was sane, he isentitled to a complete acquittal. Where he was not sane (that is hisautomatism was triggered by a disease of the mind), the usualconsequences of a verdict of not guilty by reason of insanity willprevail.19(d) A person is insane if affected by a disease of the mind so as to beincapable of knowing that an intentional act was morally wrong bycommonly accepted standards.20 The burden of proving insanity lieson the defence.21(e) These defences ought to be explained to the jury and addressed in thefollowing order: automatism (both sane and insane), intent, insanity.When considering automatism, the jury must be directed to establishwhether (if they find that the defendant did not commit the actus reusvoluntarily) the automatic state was the product of a disease of themind, and if it was then an insanity verdict follows.22 Insanity as adiscrete defence comes last because it need not be considered unlessthe Crown has proved that the acts were intentional.23[17] Mr Lyttelton maintained that both automatism and insanity ought to have beenleft to the jury on the evidence. In addition, he submitted that Asher J failed to direct16 Bannin, above n 14, at 248–249; Cottle, above n 15, at 1011 per Gresson P; and R v Falconer(1990) 171 CLR 30 at 85 per Gaudron J.17 Cottle, above n 15, at 1011 per Gresson P.18 At 1014 per Gresson P; and Falconer, above n 16 at 81–83 per Gaudron J.19 Cottle, above n 15, at 1013 per Gresson P.20 Crimes Act 1961, s 23(2).21 Section 23(1); and Cottle, above n 15, at 1014 per Gresson P.22 Falconer, above n 16, at 77 per Toohey J.23 Cottle, above n 15, at 1014–1015 per Gresson P; and Falconer, above n 16, at 77 per Toohey J.the jury that he must be acquitted if through a combination of mental illness, drugsand Mr Ord's assault he did not in fact act in a willed manner and with the specificintent required for each of the charges.[18] The Crown's case, at trial and before us, was that there was no evidentialfoundation sufficient to leave automatism or insanity to the jury. Asher J correctlydirected the jury that they must acquit on each charge if the Crown failed to show thenecessary specific intent and directed them that they might take into account mentalillness, drug consumption and what happened at the scene when considering intent.His directions favoured the defence because he refused the Crown's request that heinstruct the jury that a drugged or drunken intent is still an intent.Treatment of mental state defences at the trial[19] It is convenient to begin with the 6 November 2015 judgment of Brewer J ona discharge application brought by Mr Lyttelton, who invoked this Court's judgmentand submitted that he must be discharged because the Crown had no evidence to rebutthe reasonable possibility that he lacked the necessary criminal intention. He reliedupon the reports of Dr McCormick and Professor Mullen and drew the Judge'sattention to the judgment of Fisher J in Bannin.24 He submitted that the Crown couldnot exclude incapacity resulting from a disease of the mind and intoxication.[20] The Crown's short response was that on a retrial "everything and anything isin contest". The premises on which Professor Mullen and Dr McCormick formed theiropinions were in dispute. The application was declined, Brewer J reasoning thatwhether or not Mr Lyttelton had the necessary criminal intent was a matter for thejury.25[21] As noted, the reports of Dr McCormick and Professor Mullen were admittedfor the trial. Both experts based their assessments largely on Mr Lyttelton's ownaccount. Dr McCormick examined Mr Lyttelton on 16 April 2008. He concluded thatMr Lyttelton was then suffering from a major depressive episode and opined that his24 Bannin, above n 14.25 Lyttelton v R [2015] NZHC 2745 at [12].actions at the time of his described offending were consistent with an intention to killhimself, and not another person.[22] Professor Mullen examined Mr Lyttelton in September 2009. He assumed thatMr Lyttelton had taken all of the Zopiclone (sleeping tablets) and all of the Paroxetine(antidepressants) he had been prescribed. (In fact Mr Lyttelton had taken all 14Zopiclone tablets but only six Paroxetine from a prescription of 90 tablets.) ProfessorMullen considered that at the time Mr Lyttelton was suffering from a severe depressiveillness the effects of which were compounded by the overdose. The severe depressiveillness amounted to a disease of the mind. Because he was in a psychotic state wheninterviewed, there was an increased chance that at the time of the attacks he was alsosuffering from delusional misunderstandings. His intentions at the time of the attackwere the product of disordered beliefs and deformed understanding of his situationconsequent on the depressive illness. He would have been deprived of the capacity toform coherent or considered intentions, or formulate a rational course of conduct.However, he was not insane. The combination of a severe depressive and recentoverdose would have seriously impaired his capacity to understand the nature andwrongfulness of his actions, but not to such a degree as to render him incapable ofsuch understanding.[23] It will be seen that neither expert considered that Mr Lyttelton was insane orsuggested he was incapable of forming an intent. Rather, he formed an abnormal intentunder the influence of illness and drugs.[24] In pre-trial discussions it was established that the Crown intended to call onepsychiatric expert, Dr Dean, while Mr Lyttelton intended to call Dr Goodwin andDr Menkes. Briefs were exchanged in accordance with the usual procedure for expertwitnesses. None of the expert witnesses considered that Mr Lyttelton was insane orsuggested he was incapable of forming an intent. Mr Lyttelton confirmed at a pretrialhearing that he did not pursue insanity and "other routes" and the defence came downto whether he had the requisite intent.[25] The penultimate Crown witness, Dr Dean, considered that Mr Lyttelton wasextremely unlikely to have been suffering from psychosis at the time and was awareof the nature and quality and wrongfulness of his acts. He considered it extremelyunlikely that the defence of insanity was available. In cross-examination Mr Lytteltonthen asked the following question: you've been definitive about whether section 23 applies or not as toinsanity, but not the comment "I'm going home now", still call into questiontemporary insanity?[26] The Court stopped Mr Lyttelton, and there followed an in-chambersdiscussion. The prosecutor, Mr McColgan submitted that insanity was "off the table".Asher J pointed out that a reference to temporary insanity was contrary to the way inwhich Mr Lyttelton had run his case and clarified that he was not seeking to advancethe defence of insanity. He urged Mr Lyttelton to focus in his evidence on whether hehad the intent required by each of the charges; that is, the intent to go into the houseto commit a crime, the intent to hurt someone when he fired the gun, and the intent tomurder Mr Ord. The defence case proceeded on that basis.[27] In his opening address to the jury Mr Lyttelton repeated that there was littledispute about what happened at the Ord house. His defence was that he was labouringunder a major depressive illness and was intent only on suicide. His judgement wascompletely clouded by mental illness and was the residual effects of the overdose.[28] Dr Goodwin's evidence was that Mr Lyttelton was not suffering frompsychosis when examined and understood the nature, quality and wrongfulness of hisactions. He also accepted under cross-examination that Mr Lyttelton would have beencapable of forming an intent to harm others, and that automatism was not available onthe evidence. When cross-examined by the Crown Dr Menkes excluded automatismand accepted there was no evidence to suggest Mr Lyttelton could not have formed anintent.[29] After the evidence closed, the Judge discussed his proposed question trail withthe parties. Apprehending from his questions of defence witnesses that Mr Lytteltonnow sought to advance automatism, Mr McColgan submitted that both Dr Goodwinand Dr Menkes had positively excluded it, while Dr Dean had not done so becausecounsel had not realised when questioning him that Mr Lyttelton might be pursuing it.The Crown accepted, however, that the defence did say that a combination ofdepression and drugs rendered Mr Lyttelton incapable of forming the requisite intent.For his part, Mr Lyttelton said that he had spoken about automatic behaviour but hadnot called it automatism. He acknowledged that he had not adduced independentmedical evidence on automatism.[30] The Judge issued a minute, in which he recorded that:[2] Two issues have arisen. The first is the question of whetherMr Lyttelton is raising the defence of automatism. The Court of Appeal in itsdecision had observed that the defence of sane automatism was not a viabledefence. None of the experts have said that in a medical sense automatismcould be said to apply to Mr Lyttelton's actions at the time of the incident(although Dr McCormack recorded that Mr Lyttelton had described things ashappening in a blur with Mr Lyttelton acting in "an automatic way"), andProfessor Mullen had observed that "at the time of the attack Mr Lytteltonwould have been deprived of the capacity to form coherent or consideredintentions".[3] The two experts called by Mr Lyttelton at the trial, Dr Goodwin andDr Menkes both specifically stated that the defence of automatism was notavailable.[4] Mr Gibson and Mr Lyttelton in discussions this morning made it clearthat they are not asking for the seldom used defence of automatism to be putto the jury. It is, however, going to be part of Mr Lyttelton's submission to thejury that he was acting in an automatic way after the struggle with Mr Ordcommenced. The Crown accepts that he may legitimately make thatsubmission and refer to those parts of the evidence that he says supports thatposition.[31] The closing addresses focused on intent. Mr McColgan rehearsed the facts andcontended that Mr Lyttelton's actions were manifestly intentional. The defenceaccount pointed to bad decision making but did not preclude intent. He emphasisedexpert evidence that Mr Lyttelton was impaired but capable of forming intent despitethe drugs, the effects of which were spent or mild. He pointed out thatProfessor Mullin had based his opinion on the assumption that Mr Lyttelton had takenall the anti-depressants prescribed, not the six tablets actually taken.[32] Mr Lyttelton delivered a brief address. He repeated that there was little disputeabout the facts. He asked the jury to carefully read Professor Mullen's report andurged them to accept that he was so severely compromised in his mental functioningthat he was incapable of understanding how reckless it was to shoot through the door.His actions after Mr Ord attacked him were automatic, unintentional and instinctive.His intention in going to the property was to commit suicide. He believed he was"goal-directed at suicide".The summing up[33] Asher J summed up on 16 March 2016. He explained that intent was the keyissue in the case and gave an inferences direction in which he stressed that whilethe jury would look at what was done in the house they must also consider whatMr Lyttelton said about those actions and what was in his mind, as well as the evidenceof the psychiatrists. Referring to the fact that Mr Lyttelton had chosen to giveevidence, the Judge explained that he had denied any intent to kill or harm or doanything unlawful, and if they accepted that or were unsure about it they must acquit.[34] Before going through the question trails and identifying the intent required foreach charge, the Judge discussed intent generally as follows:[44] Now I am shortly going to come to the question trails, but before I do,as you know, at the heart of this case is the issue of what intention Mr Lytteltonhad when he went to the house and when he carried out his various actions inthe house. You have got to go through those intents in relation to the threecharges, but you know roughly what they are, because they have already beenthe subject of submission to you. It is Mr Lyttelton's case that a combinationof his depressive illness and the drugs he had taken had rendered himincapable of forming the necessary intent. It is the Crown's case that heplainly did have that necessary intent demonstrated by, as Mr McColgan hassaid, his actions.[45] Mr Lyttelton has pointed to his depressive illness and his consumptionof drugs, his suicide attempt in the days before and his evidence about whathe did before he went to the house — going to the domain with suicide in hismind. He has also relied on the words at the house, what he said, and hisactions — the shooting at the door handle and so on, I will not go throughthem all.[46] The law does recognise that a person can be in a position where theycan be incapable of forming the requisite intent because of particular externalor internal factors. It is for you to assess whether the Crown has proved thenecessary intent from the actions and words of Mr Lyttelton, and in doing soyou must take into account what Mr McColgan has said about the words andactions and what he has also said about the expert evidence ofProfessor Mullen, Dr McCormack, Dr Dean and Dr Goodwin and Dr Menkes.You will balance that against what Mr Lyttelton has actually said his intentwas, and what he has said about the experts' evidence and how he says itsupports his case and how he says his lack of intent is supported by his actionson the previous days and on the morning leading up to going to the house.[35] The Judge then directed the jury that: for aggravated burglary the Crown mustsatisfy them beyond reasonable doubt that when he entered the house Mr Lytteltonintended to commit the crimes of assault or murder or unlawful discharge of a firearmor kidnapping; for attempted murder, the Crown must satisfy them beyond reasonabledoubt that Mr Lyttelton intended to kill Mr Ord; and for causing grievous bodily harmwith intent to injure, the Crown must satisfy them beyond reasonable doubt thatMr Lyttelton intended to injure a person when he fired the gun through the door.[36] After the jury retired, Mr McColgan made a determined effort to havethe Judge add a standard intoxication direction. The matter had been discussed beforeclosing addresses were delivered and we infer from the record that the Judge hadaccepted that to do so might be to undercut Mr Lyttelton's defence. Mr McColgan'sconcern was that the jury might think it permissible to reason that because Mr Lytteltonwas intoxicated he had no intent. The Judge refused, reasoning that intoxication candiminish intent and expressing a concern that giving a further direction might be toplace undue weight on the point with the jury:[1] This morning I had a general discussion about evidential directionsthat might be given to the jury. I raised the question of whether I should givean intoxication direction, adapted so as to refer to the presence of a depressiveillness and the residual effect of the drugs that Mr Lyttelton had taken[2] We discussed a more limited type of direction that I might giveexplaining that it was Mr Lyttelton's case that a combination of his depressiveillness and the drugs he had taken had rendered him incapable of forming thenecessary intent. I discussed the words of that direction.[3] Mr McColgan, after I had read out what I proposed saying, did notexpress any concerns or opposition to what I had said I would say. I have nowsummed up to the jury and in that summing up I have made comments to theeffect I indicated I would make, although they have been made somewhatlonger as I have tried to make them more specific to the facts.[4] Following my summing up Mr McColgan has expressed his concernthat I have not given an orthodox intoxication direction in relation toMr Lyttelton's illness and his use of drugs. He submits that the jury may beleft with an impression that is unfair to the Crown case. He has asked me tocall the jury back and give them an orthodox intoxication direction, adaptedfor the illness and the use of drugs.[5] Mr Gibson opposes this step. He submits that it is unnecessary as ithas been clear that the Crown's case is that although there was a depressiveillness and there had been use of drugs, and some residual Zoplicone in hissystem and possibly other drugs, the necessary intent was neverthelessformed. For the reasons he gave earlier this morning he submitted thee shouldnot be any intoxication direction. He was concerned about the effect that anydirection might have on the jury, in particular the references to a disease of themind and the use of drugs not being a defence. Mr Lyttelton supports thatobjection.[6] I decline Mr McColgan's request to so further direction the jury. TheCrown case has been very clear throughout that despite the illness and use ofdrugs the requisite intent existed. It has never been suggested by Mr Lytteltonor Mr Gibson to the jury that the illness or the use of drugs established couldthemselves constitute a defence. It has not been suggested that there could notbe a sufficient intent even if there was some use of drugs or illness. Indeedthe whole thrust of the evidence of most of the psychiatrists has been that therewas an ability to form an intent despite those factors.[7] Thus, I do not consider it necessary in doing fairness to the Crowncase to recall the jury on the point. I am also very concerned that if I do so, itmight appear as if I was in some way trying to give an indication to the jurythat the use of drugs and the illness were not matters of particular significancefor the defence.Mental state directions were inadequate[37] Asher J reduced the essential question for the jury to one of fact on each charge:did Mr Lyttelton act with the specific intent required by the charge. He identified whatthat intent was. He directed that Mr Lyttelton was not guilty if he lacked that intent,or was incapable, for any reason including mental illness and intoxication.[38] Mr Lyttelton argued that because automatism and intent are questions forthe jury, a trial judge must explain the law to them. That is not correct. A judge oughtto isolate the factual issues for decision and instruct the jury, based on his or heranalysis of the law, what verdict may or must result from a given finding. To that endthe judge should direct the jury on all matters of fact on law that they might reasonablytake into account when deliberating.26[39] So, for example, it was not necessary to explain to the jury that mens rea mayrequire both willed action or volition and a specific intent. All of the charges requireda specific intent. (There were no included charges.) If the Crown failed to provespecific intent, the jury were to find Mr Lyttelton not guilty. No purpose could beserved by explaining that volition must be proved too, there being no possibility thatMr Lyttelton had acted involuntarily but with specific intent.26 R v Tavete [1988] 1 NZLR 428 (CA) at 431.[40] Nor was it necessary to discuss automatism. The Judge put it in issue by tellingthe jury that in law Mr Lyttelton could have been rendered incapable of intent byexternal and internal factors, and he explained Mr Lyttleton's defence rested on hismental state, his consumption of drugs and evidence of his actions before and at MrOrd's residence. This effectively meant that any question of automatism wassubsumed into a broader defence of a lack of intent.[41] The Judge also simplified the jury's task by directing that if Mr Lyttelton wasincapable, or lacked the necessary intent, from any combination of these causes hemust be acquitted. That this was the Judge's aim is shown by his refusal to give anintoxication direction when asked by the Crown. In this way he avoided having todirect them to distinguish between intoxication and mental illness with a view toexcluding intoxication unless it had resulted in incapacity.27 Simplicity was achievedat the Crown's expense, because the resulting direction was favourable to the defence;it allowed the jury to rely on voluntary intoxication as a factor detracting from intent.[42] Finally, it was not necessary to explain intent beyond saying, as the Judge did,that Mr Lyttelton must be shown to have acted for a particular object or purpose or, inthe case of the offence against Ms Fenton, with recklessness as to whether he injuredanyone.[43] These conclusions dispose of Mr Lyttelton's arguments regarding directions onautomatism, intoxication and intent.Insanity ought to have been left to the jury[44] Mr Lyttelton now wishes to invoke the defence of insanity, in the alternative toautomatism and lack of intent. He contends that there was an evidential foundationfor the defence and that Asher J accordingly erred by failing to leave it to the jury. Hepoints out that it is not fatal that Mr Lyttelton himself did not invoke it at trial.28[45] We are satisfied that the Judge was right to exclude the defence. It was not indispute that Mr Lyttelton laboured under a mental illness, depression, but the27 R v Kamipeli [1975] 2 NZLR 610 (CA) at 619.28 Tavete, above n 26, at 431.connection between illness and incapacity for moral reasoning could not beestablished in circumstances where all the expert witnesses excluded it.Defence case was not summarised[46] As noted, Mr Lyttelton submitted that Asher J failed to identify and summarisehis defence. We have already dealt with this so far as it concerns automatism andinsanity, and we have held that the Judge's directions about the intent required wereappropriate. That largely disposes of this ground of appeal. Mr Lyttelton alsosubmitted, however, that Asher J failed to direct the jury that he must be acquitted ifthrough mental illness, intoxication and Mr Ord's assault he did not form the necessaryintent. The Judge thereby failed in his duty to summarise the defence case.[47] A trial judge must ensure that the nature of the defence is explained bysummarising the nature of the defence and the evidence.29 The focus must be on thereal matters on which the defence is based. How much detail is required depends onthe circumstances. A judge may rely on closing addresses to the extent appropriate.30[48] We are not persuaded that Asher J erred by summing up as he did. We havecited his directions at [34] above. He very clearly identified the nature of the defenceand explained that it rested on Mr Lyttelton's mental state and combination of illness,drugs and what happened before and at the house. Contrary to Mr Lyttelton'ssubmission before us, he plainly did direct the jury that they must acquit if throughmental illness, intoxication and Mr Ord's assault he lacked the necessary intent.He reminded the jury that when considering state of mind they must take into accountMr Lyttelton's own evidence and that of the five experts. The summing up was brief,but the directions on intent were sufficient. It needs to be borne in mind that, contraryto the case now advanced, the narrative facts were not in dispute, and nor had MrLyttelton advanced automatism or insanity.29 R v Shipton [2007] 2 NZLR 218 (CA) at [33] and [37].30 Hutchins v R [2016] NZCA 173 at [47]–[52].Perjury by Mr Ord[49] Mr Lyttelton retains a poor opinion of Mr Ord, whose character he sought toput in issue at trial. He was refused permission to go into their earlier civil disputesbut permitted to say that he believed Mr Ord had behaved dishonestly and done manypeople a great deal of harm. He now maintains that Mr Ord's evidence was perjury,aided and abetted by the Crown, which had prepared a brief of evidence that differedfrom Mr Ord's previous statements. He put this claim at the forefront of hissubmissions in this Court.[50] We say at once that it is neither necessary nor appropriate to accuse Mr Ord ofthe criminal offence of perjury. It would suffice for Mr Lyttelton's purposes to showthat no reasonable jury would have accepted Mr Ord's evidence.[51] That said, we turn to the merits. We have noted that the narrative was not indispute at trial, but there were different perspectives on what happened at the house.By way of illustration, it was Mr Lyttelton's case that when Mr Ord opened the officedoor he fell through it and was seized from behind by Mr Ord, thereafter actingreflexively. Mr Ord's account was that as Mr Lyttelton raised the gun, which had beenpointing down, the door opened and Mr Lytteleton tumbled into the room becauseMr Ord grabbed him.[52] We make three general points about this ground of appeal:(a) A witness routinely departs from prepared witness statements whengiving evidence. This does not in itself indicate that the evidence isfalse. It creates an opportunity to test the witness in cross-examination,as Mr Lyttelton did.(b) The credibility and reliability of Mr Ord's evidence were juryquestions.(c) It is not easy to satisfy an appellate court that the jury ought to haverejected the evidence in the circumstances. The test of an unreasonableverdict is whether, on all of the evidence, a jury acting reasonably oughtto have entertained a reasonable doubt as to guilt.31[53] On the merits, Mr Lyttelton fails by a substantial margin to make out thisground of appeal. His arguments depend on the proposition that discrepancies, eventrifling ones, when describing events that were substantially undisputed, must dictatethat Mr Ord's evidence should be rejected. That is plainly incorrect. We also rejectthe related argument that the Crown has misconducted itself. We record that after theclosing addresses at trial Mr Lyttelton acknowledged that the Crown had treated himfairly. We agree with that opinion. It is our assessment that the Crown cooperatedfully and lent such assistance as it could to ensure the trial was fair.The evidence of Dr Dean was misleading[54] Mr Lyttelton contended that the prosecutor knowingly led the Judge and thejury into error. He did not clearly explain this submission in his written submissions,but it appears that he took issue with Dr Dean's evidence that:(a) it was highly unlikely that Paroxetine was present in a significantquantity and the effects of that drug and alcohol were likely spent;(b) a therapeutic dose of Zopiclone would make Mr Lyttelton sleepy andmight cause disinhibition and contribute to depersonalisation or a senseof detachment; and(c) depersonalisation does not affect the capacity to form intent.[55] The premise of this submission is that Dr Dean's evidence is demonstrablywrong. We do not agree. His opinion was based on professional expertise andpublished documents about the effects of the drugs. It was properly admitted inevidence for the jury to evaluate along with the evidence of Dr Menkes. Nor does itmatter that Dr Dean was referred to a police summary of facts, among other31 R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [86]; and R v Owen [2007] NZSC 102,[2008] 2 NZLR 37 at [17].documents, when he formulated his opinion. The factual premises for his opinioncould be tested at trial.[56] We record that in his submissions Mr Lyttelton did not take issue withDr Dean's evidence that, contrary to Professor Mullin's opinion, it is extremelyunlikely that Mr Lyttelton suffered any kind of psychosis at the time of the offending.Dr Dean was asked to interpret the terms used by Professor Mullen. He consideredthat when Professor Mullen opined that Mr Lyttelton would have been deprived of thecapacity to form "coherent or considered intentions or formulate a rational course ofconduct", the Professor was likely saying that in his depressive state Mr Lytteltonmade poor choices. That was so because Professor Mullin appeared to consider thatMr Lyttelton was capable of forming an intent and Mr Lyttelton's own account toProfessor Mullin suggested that he had intent, albeit to commit suicide rather thanmurder.The shot that wounded Ms Fenton was aimed at the door handle[57] It is Mr Lyttelton's case that when he fired at the door, which was lockedagainst him, he was aiming generally at the handle but missed, with the result thatMs Fenton was hit. He went to considerably lengths to argue that ESR could haveverified his account had it tested the angle at which the shot struck the door.[58] Mr Lyttelton was not accused of shooting Ms Fenton intentionally. The Crowndid not suggest that he knew exactly where the occupant or occupants of the roomwere. He would have faced a different charge had it been otherwise. The Crown casewas simply that by firing at the door he acted with reckless disregard for the person orpeople whom he knew to be in the room. It is no defence that his immediate objectivein firing at the door may have been to get into the room. For these reasons, Asher Jstated that this issue was immaterial.32 We agree.32 R v Lyttelton [2016] NZHC 1042 at [17].The verdicts were otherwise unreasonable[59] Mr Lyttelton contends that the defence evidence on each charge ought to havebeen preferred, and that had it been the Crown must have failed to make out the intentrequired for each charge. So, for instance, he argues that:(a) The defence evidence showed that: he lacked the intent for aggravatedburglary because he had gone to the house to commit suicide, which isnot a crime; he had shot into the room to gain entry and not with intentto harm anyone and because of his mental state lacked the foresight ofharm needed for recklessness; and he lacked intent to murder.(b) Dr Menkes' evidence was to the effect that the drugs, which areassociated with disinhibition and aggression, may still have beenpresent in Mr Lyttelton's brain in significant quantities.(c) The defence evidence, coupled with the reports of Dr McCormick andProfessor Mullin, established that he was suffering both a disease of themind and intoxication. We understand the submission to be that thisevidence established automatism or absence of specific intent orinsanity.This amounts to a submission that the verdicts were unreasonable.[60] We do not accept that the defence evidence must have been preferred by aproperly directed jury. In our opinion, the defence evidence was not sufficient todisplace a very strong Crown case founded on the inferences that follow naturally froma largely undisputed narrative. Dr Menkes's evidence fell well short of showing thatMr Lyttelton lacked specific intent. It tended to explain, on the contrary, why MrLyttelton may have formed and acted on the intent to kill; he was capable butsomewhat disinhibited. It is unsurprising that the jury evidently reached the sameconclusion. We have already held that there was insufficient evidence to leave insanityto the jury.Other grounds of appeal against conviction[61] Mr Lyttelton argued that Asher J made serious errors throughout the trial.He rehearsed a great deal of case law about the offences and defences and theobligations of a trial judge and the prosecutor and the police. We have dealt with thesubstance of the alleged errors so far as they might provide grounds for appeal. We donot otherwise find it necessary to discuss this material.[62] He also complained about failures of disclosure by the police. He believes thatthings went wrong with the original summary of facts, on which he was first sentencedon 31 March 2010. He argues that it continued to taint the trial and even the sentence.He complains that before trial he sought disclosure of who had prepared and reviewedthe summary of facts, information which was relevant to his argument that Mr Ordcommitted perjury with the knowing assistance of the police. Similarly, he soughtdisclosure of police and ESR case files to show that evidence about the angle of theshot was wrong. We do not accept these complaints. The summary of facts was reliedon at the first sentencing, but not thereafter. It was not in evidence at trial. Ifdiscrepancies between that summary and the evidence at trial affected the evidence ofany expert witness who had relied on the summary when preparing his evidence, thatcould have been brought out in cross-examination. We have explained that the angleof the shot was immaterial.Conclusions on conviction appeal[63] We have considered all of Mr Lyttelton's grounds of appeal and submissionsand discussed those that have any substance in the circumstances of this case.None has been made out. The conviction appeal fails.The sentencing process[64] As noted, Mr Lyttelton's sentence appeal focused on the absence of asentencing hearing. He undoubtedly sought such a hearing, saying that he disputedfacts about Ms Fenton's location in the room and Mr Ord's evidence at trial and theeffect of the drugs. Of course these issues had been canvassed at trial. Asher Jdeclined to adjourn sentencing for such a hearing.33 He delivered a judgment in whichhe recorded that Mr Lyttelton:[4] In his very detailed submissions he takes issue with a large number offactual matters. Some of these reflect the defence that he put forward at thetrial, and some of them are matters of detail. I do not propose setting out allof the disputed factual matters that he raises. In general terms it can be saidthat he now invites me to conclude that at least in part Mr Ord perjured himselfwhen he gave evidence at the trial on how the facts unfolded once he hadentered the home. He also submits that the original Police summary of factswas misleading, that the Crown has misled the Court in its sentencingsubmissions, and that relevant facts have been suppressed by the Police[65] The Judge accepted that there may be occasions on which a disputed factshearing is required after trial, but this was not one of them:[8] I am plainly bound by some facts essential to the jury verdicts unders 24(1)(b). I am bound by the jury verdict to accept that Mr Lyttelton intendedto kill Mr Ord. I am bound by the jury verdict to find that Mr Lytteltonintended to injure Ms Fenton or another person and caused grievous bodilyharm when he fired the shotgun. I am bound to find that Mr Lytteltondeliberately entered Mr Ord's home to commit an offence.[9] The facts of what transpired were not complex. As I will set out inmy sentencing notes, Mr Lyttelton entered the home with a shotgun, cartridgesand a knife, and fired the shotgun hitting Ms Fenton. There was then anextensive struggle between Mr Lyttelton and Mr Ord. EventuallyMr Lyttelton ceased to struggle, and following that the Police arrived and hewas arrested. The only three witnesses were Ms Fenton, Mr Ord andMr Lyttelton. I heard from them all.[10] Under s 24(1)(a) I may accept as proved any fact that was disclosedby the evidence at the trial. I am well able to reach definite conclusionsbearing in mind the onus and standard of proof, from the evidence that I haveheard. There may be cases where following a trial a Judge may still need tofollow a disputed fact procedure because of areas of factual uncertainty notspecifically addressed at the trial. Some possible examples of this were setout by Williams J in R v Allison (No 35). However in most cases the trialJudge, having heard the evidence, is well able to reach conclusions on the factsunder s 24(1) without hearing more. The parties on sentencing can makesubmissions to the Judge on the facts, or invite the Judge to interpret them oneway or another, but normally the Judge will not be assisted by any furtherevidence because the Judge has heard the relevant evidence.[11] I am satisfied that I have heard the relevant evidence in relation towhat happened, and I can assess Mr Lyttelton's culpability for his offendingon that evidence. Mr Lyttelton's disputed facts are ones that I am well able toresolve.(Footnotes omitted.)33 At [20]. This judgment was delivered alongside Asher J sentencing, above n 1.[66] He illustrated his conclusion by saying that he had heard the evidence ofMr Ord and Mr Lyttelton and was satisfied that Mr Ord's evidence was truthful andpreferable to Mr Lyttelton's on those occasions where they were in conflict, and thatMr Lyttelton contested minor matters of detail, such as the angle of the gunshot, thatwere not material. Further, Mr Lyttelton's account was not easy to reconcile with theverdicts.34[67] At sentencing on 18 May 2016, Asher J made it clear that he was sentencingMr Lyttelton afresh.35 He would refer to Wylie J's sentencing in the interests ofconsistency, but he would reach his own conclusions. Before reciting the facts herecorded that he preferred the evidence of Mr Ord to that of Mr Lyttelton where theywere in conflict. He considered himself bound to do so by the jury verdicts, but it wasalso his opinion that Mr Ord was truthful and accurate.36[68] Having set out his view of the facts, which we have quoted at [9] above,the Judge rejected, as both incorrect and inconsistent with the verdicts, Mr Lyttelton'ssubmission that he did not intend to kill Mr Ord.37 However, he did not findpremeditation a significant aggravating factor, accepting rather that the decision to killMr Ord was not made until after Mr Lyttelton left home on the morning of 10 April.38Aggravating factors were the actual violence, the use of weapons, the home invasionand the persistence of the attack.39[69] The Judge adopted a starting point of eight years' imprisonment for attemptedmurder and five for causing grievous bodily harm, a total of 13 years, but adjusted thatto 11 years for totality. He added nothing for the aggravated burglary because he hadalready treated home invasion as an aggravating factor.40 He deducted 30 per cent forillness and the effect of drugs, and a further five per cent for previous good character.34 At [14]–[17].35 Asher J sentencing, above n 1, at [4].36 At [8].37 At [36].38 At [31].39 At [37].40 At [38]–[43].He allowed nothing for remorse; Mr Lyttelton regretted the harm he had done but hehad not accepted fault and continued to justify himself.41[70] The end sentence was seven years' imprisonment. Asher J observed that it was13 months more than the sentence imposed by Wylie J, but explained that he had hadthe advantage of hearing the evidence and seeing the people involved.42Grounds of appeal against sentence[71] On appeal, Mr Lyttelton submitted that:(a) Under s 24 of the Sentencing Act those facts essential to a guilty verdictmust be taken as proved at sentencing, but it cannot be assumed thatother facts given in evidence at trial were proved (or negated) beyondreasonable doubt. They must be proved to that standard for sentencingpurposes if the offender does not accept them.(b) Mr Lyttelton had put aggravating and mitigating facts in dispute, andaccordingly was entitled to a disputed-facts hearing.(c) The disputed facts included: Mr Ord's perjury, evidence as toautomatism and insanity (the Judge having failed to put these defencesat trial), Dr Menkes' evidence as to the effect of the drugs, ESR errorsin processing his blood sample and the office door, and the misleadingevidence of Dr Dean.(d) In addition, Asher J must have relied on the sentencing notes of Wylie J,which were in error because, among other reasons, Wylie J relied onthe police summary of facts.(e) For these reasons the sentence should be set aside and the case remittedto the High Court for a proper sentencing hearing.41 At [45]–[47] and [49].42 At [51]–[52].Was Mr Lyttelton entitled to a disputed facts hearing?[72] Section 24 provides:24 Proof of facts(1) In determining a sentence or other disposition of the case, a court—(a) may accept as proved any fact that was disclosed by evidence atthe trial and any facts agreed on by the prosecutor and theoffender; and(b) must accept as proved all facts, express or implied, that areessential to a plea of guilty or a finding of guilt.(2) If a fact that is relevant to the determination of a sentence or otherdisposition of the case is asserted by one party and disputed by theother,—(a) the court must indicate to the parties the weight that it would belikely to attach to the disputed fact if it were found to exist, andits significance to the sentence or other disposition of the case:(b) if a party wishes the court to rely on that fact, the parties mayadduce evidence as to its existence unless the court is satisfiedthat sufficient evidence was adduced at the trial:(c) the prosecutor must prove beyond a reasonable doubt theexistence of any disputed aggravating fact, and must negatebeyond a reasonable doubt any disputed mitigating fact raisedby the defence (other than a mitigating fact referred to inparagraph (d)) that is not wholly implausible or manifestlyfalse:(d) the offender must prove on the balance of probabilities theexistence of any disputed mitigating fact that is not related tothe nature of the offence or to the offender's part in the offence:(e) either party may cross-examine any witness called by the otherparty.(3) For the purposes of this section,—aggravating fact means any fact that—(a) the prosecutor asserts as a fact that justifies a greater penalty orother outcome than might otherwise be appropriate for theoffence; and(b) the court accepts is a fact that may, if established, have thateffect on the sentence or other disposition of the casemitigating fact means any fact that—(a) the offender asserts as a fact that justifies a lesser penalty orother outcome than might otherwise be appropriate for theoffence; and(b) the court accepts is a fact that may, if established, have thateffect on the sentence or other disposition of the case.[73] The approach to be taken to s 24 where an offender is to be sentenced afterhaving been found guilty at trial has been settled by previous judgments ofthis Court.43 Briefly:(a) Judges have a fact-finding role at sentencing. They must accept allfacts, express or implied, that are essential for the verdict,44 and maynot adopt any view of the facts that is clearly inconsistent with it.45Subject to that, they may accept as proved any fact that was disclosedby evidence at the trial and may form their own view of the facts.46(b) It is incumbent on a party to raise with the judge any fact that the partywishes to dispute at sentencing, and such facts must be clearlyidentified.47(c) A disputed fact having been identified, the judge must indicate theweight likely to be attached to it and its significance for sentencingpurposes.48 If the judge considers the fact immaterial to sentence, it isnot relevant for purposes of s 24(2).(d) Where a fact is relevant and a party wishes the court to rely upon it, theparties may adduce evidence of its existence unless the court is satisfiedthat sufficient evidence was adduced at trial.49 Evidence is sufficientwhere it proved the fact to the standard required under s 24(2)(c) or s24(2)(d).5043 We refer to the list in Geoff Hall Hall's Sentencing (online looseleaf ed, LexisNexis)at [SA24.10].44 Sentencing Act 2002, s 24(1)(b).45 Gathergood v R [2010] NZCA 350 at [17].46 R v Accused (CA125/87) [1988] 1 NZLR 422 (CA) at 426–427.47 Archer v R [2017] NZCA 52 at [15]. See also Curtis v Police (1993) 10 CRNZ 28 (HC) at 33.48 Sentencing Act, s 24(2)(a).49 Archer, above n 47, at [12]–[13].50 R v Bryant [1980] 1 NZLR 264 (CA) at 270–271; and R v Booth CA109/05, 18 July 2005 at [41].(e) Where an aggravating or mitigating fact is relevant, a party wishes torely on it and the judge considers that it has not been proved to therequired standard, a disputed facts hearing must be held.(f) At such hearing the prosecutor must prove a disputed aggravating fact,or negate a mitigating one relating to the offence or the offender's partin it. The standard of proof is beyond reasonable doubt. The offendermust prove any other disputed mitigating fact on the balance ofprobabilities.51(g) Disputed-fact hearings are seldom required after trial.52 Normallysentencing proceeds on facts disclosed in evidence there, with the judgegiving such weight as seems fit to other facts advanced, but not testedand proved, in mitigation. However, it is possible that important anddisputed aggravating or mitigating facts were not sufficientlyestablished at trial, and where that happens a disputed-facts hearingmay be required.53[74] It follows that, contrary to his submissions, Mr Lyttelton was not entitled unders 24 to a disputed-facts hearing merely because he disputed facts that he thoughtmaterial to sentence. Several prerequisites stood in his way. A party must rely on thefacts as aggravating or mitigating, as the case may be, and the Judge must accept thatthey were relevant to sentence. The Judge need not order a disputed-facts hearing forfacts disclosed by evidence at the trial and proved there, in his or her opinion, to therequired standard. And the Judge could not take a view of the facts that was clearlyinconsistent with the verdicts.[75] In this case, Mr Lyttelton put a large number of disputed facts in issue.However, evidence of those facts was disclosed at trial. Asher J was satisfied thatsufficient evidence had been adduced to prove them and, in some cases, that they wereSee also Hall, above n 43, at [SA24.7].51 Sentencing Act, ss 24(2)(c) and 24(2)(d).52 R v Aram [2007] NZCA 328 at [71].53 See for example Gilfedder v R [2013] NZCA 426 at [81]–[87]; Mata v R [2012] NZCA 593 at[12]–[19]; and Saggers v R [2012] NZCA 591 at [23]–[26]. See also Broekman v R [2012]NZCA 213 at [14]–[15]; and Archer, above n 47, at [16]–[23].immaterial to sentence. Further, the disputed facts traversed the narrative establishedat trial and the central issue of intent. To permit evidence of them would have been torevisit guilt, which is necessarily incompatible with the verdicts. For these reasons,the Judge was right to refuse a disputed-facts hearing.[76] We find untenable the allegation that the sentencing was tainted because AsherJ relied on Wylie J's sentencing and so indirectly adopted the police summary of facts.Asher J made it clear that he was sentencing independently of Wylie J, having heardthe evidence.54[77] The sentence appeal fails.[78] For completeness, Mr Lyttelton filed a detailed affidavit dated 7 March 2018in support of his appeal. Much of that affidavit was essentially submission, but it alsoannexed various documents Mr Lyttelton relied on for his appeal. No formalapplication to adduce further evidence was filed, and though none of that evidencewas fresh, in the interests of justice we grant the implicit application to adduce furtherevidence on appeal. We have taken that material into account.Result[79] The application to adduce further evidence on appeal is granted.[80] The application for recusal is declined.[81] The appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent54 Asher J sentencing, above n 1, at [4].