R v Clode - [2007] NZCA 447

PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 CRIMINAL JUSTICE ACT 1985.

ORDER PROHIBITING PUBLICATION OF JUDGMENT OR THE REASONS THEREFOR IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE
UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST IS PERMITTED.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Clode

Details

AGLC: R v Clode [2007] NZCA 447
Case: [2007] NZCA 447
Decision Date: 17 October 2007

CaseChat Overview and Summary

In the case of R v Clode, the Court of Appeal of New Zealand heard an appeal against the decision of Judge Behrens QC, who had declined to allow the defendant, Mr Timothy Brian Clode, leave to cross-examine the complainant in relation to her prior sexual encounter with another individual on the same evening as the alleged offence. Mr Clode is charged with engaging in sexual conduct with a young woman under 16, contrary to s 134(1) of the Crimes Act 1961. The legal issues before the Court of Appeal were whether the evidence of sexual intercourse with T was directly relevant to the appellant's contention that the act he is charged with did not occur, and if so, to what extent the defence could cross-examine the complainant.

The Court of Appeal allowed the appeal and found that the evidence of sexual intercourse with T was directly relevant to the appellant's contention that the act he is charged with did not occur. The Court held that the starting point in every case is that the accused must have a fair trial and must not be precluded from putting things that are necessary to their defence. Section 44 of the Evidence Act 2006 was enacted to prevent the inappropriate blackening of the characters of complainants, but not to preclude or truncate the advancement of a full defence. The Court held that the defence should be permitted to cross-examine the complainant to the extent indicated in [25] – [27] of this judgment, which includes discussing the events from the "pick up" in the car, the drinking of alcohol, S's disrobement and intercourse with T, and her thinking better after these sexual episodes had passed. However, the Court found that the defence should not be able to pursue her subsequent discussions about these events with two witnesses, or what transpired in relation to S's visit to a sexual health clinic the following day.

The Court of Appeal granted leave to appeal and permitted the defence to cross-examine the complainant to the extent indicated in [25] – [27] of this judgment. The Court also made an order prohibiting the 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 was permitted.

Orders