R v Clode

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.