R v Clode
[2007] NZCA 447
•17 October 2007
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ORDER PROHIBITING PUBLICATION OF JUDGMENT OR THE REASONS THEREFOR IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE
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IN THE COURT OF APPEAL OF NEW ZEALAND
CA478/07 [2007] NZCA 447
THE QUEEN
v
TIMOTHY BRIAN CLODE GUY EDWARD STAFFORD
Hearing: 8 October 2007
Court: Hammond, Baragwanath and Keane JJ Counsel: W M Johnson for T B Clode
G R Fulton for G E Stafford
C A Patterson and D R La Hood for Crown
Judgment: 17 October 2007 at 2.15 pm
JUDGMENT OF THE COURT
A Leave to appeal is granted, to both appellants.
R V CLODE AND ANOR CA CA478/07 17 October 2007
BThe appeal is allowed; the defence may cross-examine the complainant to the extent indicated in [25] – [27] of this judgment.
CAn order is made prohibiting publication of this judgment or the reasons therefor in the news media or on the internet or in any other publicly accessible database until final disposition of the trial. Publication in a law report or law digest is permitted.
REASONS OF THE COURT
(Given by Hammond J)
Introduction
[1] Mr Clode is charged with having engaged in sexual conduct with a young woman under 16, contrary to s 134(1) of the Crimes Act 1961. Before trial, in an application determined by Judge Behrens QC, Mr Clode sought leave to cross- examine the complainant as to a prior sexual encounter with another individual earlier in the evening of the alleged offence. On 20 September 2007, Judge Behrens declined such leave. Mr Clode now applies for leave to appeal against that ruling.
[2] Mr Stafford did not file a Notice of Appeal. Mr Fulton appeared on his behalf today. The outcome of this appeal also affects his case. The Crown did not object to us hearing Mr Fulton in support of the same contentions as were the subject of Mr Clode’s appeal. We formally give leave for Mr Fulton’s late application for leave to appeal.
Background
[3] At the relevant time the complainant, S (then aged 14) was on holiday with her parents in Riversdale, in the Wairarapa. On 21 January 2006 she was “hanging out” with a number of young people during the day. Mr Clode (aged 30) drove past
this group of young people. After Mr Clode had called her name several times, S asked him for a ride. She then entered Mr Clode’s car with two of her friends, N (15) and T (14). A co-accused, Mr Stafford, also in his 30s, was in the car with Mr Clode.
[4] A substantial amount of alcohol was consumed by this group of people as Mr Clode drove to a house or bach. During the course of this car trip Mr Clode asked S her age, and also inquired after N’s age.
[5] Upon the group arriving at the beach property, S went to a sleep-out with T. She had sexual intercourse with him there. S was somewhat affected by alcohol. While she was attempting to find her pants after the intercourse had occurred, T left to find N.
[6] T returned with N to the sleep-out. Then Mr Clode and Mr Stafford also arrived at the sleep-out. Mr Clode then proceeded to have sexual intercourse with S while she performed oral sex on Mr Stafford. As this was happening, S recalls seeing T and N engaged in sexual intercourse in the same room. N also recalls witnessing the sexual acts between S, Mr Clode, and Mr Stafford.
[7] There is also a suggestion from N that another man, Mr M, was present immediately before Mr Clode and Mr Stafford arrived. According to N, Mr M engaged in oral sex with S. This has not been raised by S, and Mr M is not charged with any offence.
[8] Mr Clode denies the alleged events. He told the police that he was aware sexual activity was taking place between S and T, and that he had even provided T with a condom, but his defence is that he did not participate in any sexual conduct himself.
The application to cross-examine S
[9] On behalf of Mr Clode, Mr Johnson made an application pursuant to s 44 of the Evidence Act 2006, for leave to cross-examine S as to her sexual experience with T and her interactions with Mr M.
[10] We need not refer further to the application as it related to Mr M; the Judge granted the application, and it is not the subject of a cross-appeal by the Crown.
The legislation
[11] Section 44 relevantly provides:
44 Evidence of sexual experience of complainants in sexual cases
(1)In a sexual case, no evidence can be given and no question can be put to a witness relating directly or indirectly to the sexual experience of the complainant with any person other than the defendant, except with the permission of the Judge.
(2)In a sexual case, no evidence can be given and no question can be put to a witness that relates directly or indirectly to the reputation of the complainant in sexual matters.
(3)In an application for permission under subsection (1), the Judge must not grant permission unless satisfied that the evidence or question is of such direct relevance to facts in issue in the proceeding, or the issue of the appropriate sentence, that it would be contrary to the interests of justice to exclude it.
[12] Relevance is defined by s 7 of the Evidence Act in the following terms:
(3)Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
[13] For the purposes of this case we need not consider whether the law as stated in s 23A of the Evidence Act 1908 has been altered. No issue arises, in that respect, on this appeal.
The District Court decision
[14] It appears that in the District Court Mr Johnson argued that the evidence relating to what had transpired between S and T prior to the alleged incident with
Mr Clode went to the “credibility” of the complainant and other witnesses, the capacity of the complainant and N to correctly identify the persons in issue, and what might be shortly termed the “true and complete” narrative of events.
[15] The Judge declined to allow cross-examination in relation to what had happened between S and T. He said (at [15]):
[E]vidence that complainant had sexual intercourse with T even only minutes before the alleged sexual connection with the two accused is not relevant to her credibility as a witness or her reliability as a witness. In argument before me Mr Johnston suggested that it could be she was making up the accusations against the accused in order to deflect an accusation of sexual intercourse with T. However it became apparent that when she made her complaint to police the complainant described the facts that I have outlined above. She did not try to hide any of her activity with T.
Discussion
[16] With consent unavailable as a defence in this case, the only issue is whether the evidence of sexual intercourse with T is directly relevant to the appellant’s contention that the act he is charged with did not occur. Put another way, the question is whether this evidence is directly relevant to a jury considering whether the complainant possibly fabricated her account or was somehow mistaken (such that exclusion would not be in the interests of justice).
[17] Something more is needed than a bald assertion that the complainant is attempting to cover up an embarrassment, which was perhaps the principal point made by Mr Johnson.
[18] R v Palmer CA202/05 11 April 2006 provides one example of the sort of “something more” which may suffice. In that case the complainant had engaged in consensual sex with her boyfriend soon after the appellant had allegedly committed sexual offences against her. In reporting the matter to the police, the complainant had originally made a false complaint to the police in relation to an unidentified person, in circumstances that were distinctly similar to the consensual sex with her boyfriend. This Court allowed the appeal (on a Governor-General’s reference) on
two grounds, one of which was the view that evidence as to consensual sex with her boyfriend should have been admitted. This Court considered at [40](b):
[B]ecause the jury did not know that she had sexual intercourse with her boyfriend that night, the jury was not well positioned to form a view as to what, if any, motive she may have had for falsely implicating the appellant. As at 22 January 1999, [the complainant] was fifteen. The sexual activity which occurred between her and [her boyfriend] was, accordingly, illegal. In that context, it is understandable, that she may have been initially anxious to protect [her boyfriend] from any legal consequences associated with what happened between them.
[19] In fairness, Mr Johnston has not put his case on such grounds, and understandably so considering on the Judge’s findings the complainant in this instance has not exhibited any desire to protect T. Additionally, the Court in Palmer was influenced by several additional factors that caused significant unease, including the possibility that the complainant had attributed conduct to the appellant that was actually referable to her boyfriend. She had stated that the appellant had ejaculated on her top, but the ESR examination only showed her boyfriend’s ejaculate was present. And as this Court noted, this occurred within the context of a recent false complaint.
[20] Effectively, what the Judge did in this particular instance was to “sever” the very close in time events of the day in question into two “parcels”. He treated what happened with T (and it has to be recalled that all of this was admitted, and is not in issue) as being separate, distinct, and having no legitimate bearing on what very shortly thereafter happened with Mr Clode.
[21] Our concern with this arises somewhat differently from the way matters were put by Mr Johnson except that, in fairness to him, in a generalised way he insisted that “the whole story” needed to be told.
[22] It is important to emphasise that in every case the starting point is that the accused must have a fair trial and must not be precluded from putting things that are necessary to his or her defence. It is not necessary to recite here the undoubted authorities in this respect: that was the common-law position, it is the position under the New Zealand Bill of Rights Act 1990, and it is recognised by the Evidence Act
2006 itself. Section 44 recognises that the need to put to a complainant certain
features of sexual experience with another person may be distinctly relevant to the defence of the particular accused, and s 8(2) of the statute specifically refers to the “right of the defendant to offer an effective defence”.
[23] The approach taken by the Judge in this instance effectively handcuffs the defence. If the evidence relating to T can be referred to, the situation would be as follows: Mr Clode arriving in a room where S was naked from the waist down, having just had sex with T, either with or without the condom as the jury might find supplied by Mr Clode, followed by Mr Clode then proceeding to have sex with this girl also. The alternative, and entirely artificial scenario, is of Mr Clode arriving in a room, again with S naked from the waist down, but without any explanation being able to be given to the jury as to why that was so, and matters then proceeding from there. Mr Johnson was entirely correct to refer to this as “artificial”; it also has the practical forensic consequence of interfering with the jury’s necessary assessment of the likelihood of what really happened. As we said to Mr Johnson, whether this evidence is entirely helpful to Mr Clode’s case may well be open to question. If admitted it is very much a double-edged sword. But that is an issue for counsel, not the Court, and it would be bizarre to have the case open, as it were, with a young girl standing semi-naked in a room with no explanation being given for that. In a play, yes; in a trial, no.
[24] Section 44 of the Evidence Act (and its predecessors) were enacted to prevent the entirely reprehensible and inappropriate blackening of the characters of particularly women complainants by directly or indirectly “tarring” them in the eyes of the jury. It was not, in terms, intended to preclude or somehow truncate the advancement of a full defence which is otherwise open to an accused. What can happen when this fundamental principle is not observed was unfortunately illustrated in Palmer.
What can be put?
[25] The fact that in our view the defence should be entitled to go in to certain matters in relation to what passed between T and S does however raise the question as to exactly where the line is to be drawn. We asked Mr Johnson just how far he
wanted to go. He suggested that he should be able to traverse matters from the “pick up” in the car, the drinking of alcohol, through to S’s disrobement and intercourse with T. He then contended that he should be able to raise S thinking better after these sexual episodes had passed, followed by her “making up” a story about her having lost her pants. In a general way, we think that much at least should be able to be pursued. We think a clear line should be drawn with anything beyond that however. Mr Johnson wanted to be able to pursue her subsequent discussions about these events with two witnesses, and more particularly what transpired in relation to S’s visit to a sexual health clinic the following day. Those latter matters go too far altogether.
[26] We have sketched these concerns in general outline only, because we have the usual difficulty of not knowing exactly how the evidence would likely fall at trial. Indeed, it was apparent at the hearing before us that there may be material which was not introduced at depositions, so we do not necessarily have a complete and accurate record.
[27] Control of the limits of these questions is a matter for the trial Judge. It may be however that both the difficulties at trial, and for that matter any potential embarrassment for S and T (both of whom are still very young people), could be avoided if the Crown and the defence settled an agreed statement of facts under this head which could then simply be put to the jury. We again emphasise that these are not “contentious” facts. It is simply a matter of line drawing and we have indicated generally where we think that line ought to fall. Such an approach would also lead to trial efficiencies.
Conclusion
[28] Leave is granted to appeal. The defence will be permitted to cross-examine S at trial as to her sexual relationship with T on the day in question, to the extent indicated in [25] – [27] of this judgment.
Solicitors:
Crown Law Office, Wellington
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