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Rodgers v The Queen

Rodgers v The Queen

Case [2018] NZHC 1800 19 July 2018

Criminal Liability

Presumption of Innocence

Judicial Review

Appeal

Criminal Law

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NOTE: PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF COMPLAINANT(S) PROHIBITED BY S 203 OF THE CRIMINAL PROCEDURE ACT 2011. SEE

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2018-409-39 [2018] NZHC 1800

BETWEEN

STUART PHILLIP RODGERS

Appellant

AND

THE QUEEN

Respondent

Hearing: 12 July 2018

Appearances:

J Taylor and J Anson-Holland for Appellant I Murray for Respondent

Judgment:

19 July 2018

JUDGMENT OF MANDER J

[1] The appellant, Stuart Rodgers, appeals the making of a registration order against him under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016 (the Act). Mr Rodgers pleaded guilty immediately before his trial started to a charge of indecently communicating with a 14-year-old girl.1 He also faced two charges of sexual connection with the same young person.2 He was found not guilty by a jury on those charges.

1 Crimes Act 1961, s 124A.
2 Section 134(1).

RODGERS v R [2018] NZHC 1800 [19 July 2018]

[2] Mr Rodgers was sentenced to seven months’ home detention.3 He does not appeal that sentence. However, Judge Gilbert determined that Mr Rodgers posed a risk to the sexual safety of children and made a registration order under the Act.4

Background

[3] At the time of the offending, Mr Rodgers was 37 years of age and the victim only 14 years. They lived in the same neighbourhood and came to know each other through mutual family connections. Over the course of six weeks they visited each other’s houses on a number of occasions and, over a two week period, were in regular contact via the social media platform Instagram. Sometimes Mr Rodgers would initiate contact and at other times contact was initiated by the victim. Their messages were highly sexual in nature. They included talk of explicit sexual activity with each other, and on one occasion each sent the other a picture of their genitalia.

[4] The two charges of sexual connection with a young person, upon which Mr Rodgers was acquitted, were based on an allegation that Mr Rogers digitally penetrated the girl’s vagina on two separate occasions. There was also evidence that on other occasions he had kissed and “groped” the young person. Those incidents were not the subject of charges but are referred to in the Judge’s sentencing notes.

The District Court decision

[5] In sentencing Mr Rodgers to home detention, Judge Gilbert was careful not to take into account the evidence adduced at trial that related to the sexual connection charges. However, in making his assessment of whether Mr Rodgers posed a risk to the sexual safety of children under s 9 of the Act, Judge Gilbert commented:

[23] Finally, I turn to other evidence of risk that you pose and other relevant considerations. Whilst I have been careful not to let my own view that you are fortunate to escape conviction on the primary charges affect the sentence I have imposed on you, my assessment of the evidence is…

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 Rodgers v The Queen

Details

AGLC: Rodgers v The Queen [2018] NZHC 1800
Case: [2018] NZHC 1800
Decision Date: 19 July 2018

CaseChat Overview and Summary

The appellant, Stuart Rodgers, appeals against a registration order made against him under the Child Protection (Child Sex Offender Government Agency Registration) Act 2016. Mr Rodgers pleaded guilty to a charge of indecently communicating with a 14-year-old girl and was found not guilty on two charges of sexual connection with the same young person. He was sentenced to seven months’ home detention, but was made subject to a registration order. He appeals the making of that order. The legal issues in this case are whether the Judge was entitled to take into account evidence relating to the acquitted charges when considering whether Mr Rodgers posed a risk to the sexual safety of children, and what standard of proof should be applied to the issue of risk. The Court held that the Judge was not entitled to take into account evidence relating to the acquitted charges when assessing the issue of risk. The Court found that the presumption of innocence applies even after a person has been convicted of a qualifying offence and remains unrebutted in the absence of the Crown proving the charge beyond reasonable doubt. As a result, the Court was precluded from proceeding to assess the issue of the making of a registration order on any basis other than that Mr Rodgers was innocent of the sexual connection charges. The appeal is allowed and the registration order is remitted back to the District Court for its re-examination in accordance with the Court's directions.

Orders