IN THE COURT OF APPEAL OF NEW ZEALAND CA 385/97 THE QUEEN v CLIFFORD ANDREW RODGER CoramEichelbaum CJ Tipping J Goddard J Hearing 30 April 1998 Counsel H Croft for Appellant S P France for Crown Judgment 30 April 1998 JUDGMENT OF THE COURT DELIVERED BY EICHELBAUM CJ The appellant was convicted by a jury in the District Court on three counts of rape and two of indecent assault on girls aged between 12 and 16. The offences committed were in respect of two sisters, the appellant s nieces. One of the rape counts was representative, as was one of those for indecent assault. He was sentenced to concurrent terms of 18 months imprisonment for the indecent assaults, and five years for the convictions for rape. The 5 years included an allowance for time in custody in Australia before extradiction which would not be deducted automatically so that the effective sentence was one of about 5 years 2 months. He has appealed against both the convictions and the sentences.
2 The first complainant gave evidence that the appellant came to stay with her family in Auckland for two to three weeks each year from the time she was 10 (1974) through until she was 13 (1977-78). Each time he came he stayed in one of the caravans he owned, these being parked on her parents property. The first complainant testified that every time she slept in the caravan the appellant would come to her bed, fondle her genitalia and then have sexual intercourse with her. This allegedly happened several times during each of the weeks he stayed. When this complainant was 13, the appellant suggested he take her to the South Island for a holiday and to see her grandmother who lived in Dunedin. It was the first complainant s evidence that they stayed a night at Taupo with some friends, then stayed a night in a motel at Wellington, and that the appellant committed the same offences at that motel as he had been doing in the caravan at Auckland. They then stayed at Blenheim, stopped at Christchurch to visit a relative, and then spent a night at a motel at Queenstown where she was again sexually abused. At the end of the holiday the appellant took her to Dunedin airport and on the way there again raped her. Her evidence regarding this trip to the South Island was supported by the evidence of her mother, and of Mrs Surgisson, a relative who stated she met the appellant and the complainant at the home of her mother at Lyttelton when they stopped there for lunch on the way south, and also by the complainant s uncle, Mr Campion, from whose place the appellant supposedly collected the complainant to take her to Dunedin airport. The second complainant gave evidence that in 1973/74 when she was 13, while the appellant was staying with her family, he came into her bedroom, sat on her bed, put his hand down her pyjamas and fondled her genital area. Both complainants maintained they placed bolts on their bedroom doors as a consequence of the appellant s conduct. At the trial the appellant gave lengthy evidence in the course of which he completely denied all the allegations. He disagreed with much of the prosecution evidence. A prime point of his case was that he did not ever own more than one caravan and that this caravan was not purchased until 5 January 1977. He rejected prosecution
3 evidence that he purchased a caravan in October 1977, trading in an earlier one in part payment. This transaction appeared to be well documented by exhibits produced at the trial but the appellant claimed they were forgeries. There was a dispute regarding the year that he and the first complainant travelled to Dunedin. He disagreed with the complainant s recollection of their route, maintaining that they passed through Taumaranui, not Taupo; that they stayed at Otaki, not Wellington; that they drove straight through to Tarras (where his home was) and did not stay in a motel at Queenstown, although they did go there for a day trip. Despite the independent evidence he denied lunching with a relative in Lyttelton. He rejected the evidence that the complainants installed locks on their respective bedroom doors. The principal grounds of his appeal, as set out in the notice of appeal which the appellant prepared personally, related to his desire to call new witnesses, and to have others examined further. Ms Croft as assigned counsel has looked into the possibility of applying for leave to call fresh evidence and in recording the various witnesses who the appellant believes could help him we append the outcome of her investigations. We record now that we are grateful to Ms Croft for her careful and conscientious enquiries. The appellant refers to a Mrs W of Taupo. It appears he anticipates she will confirm that in 1977 they did pass through Taumaranui as he claims. The appellant also wishes to call a Mrs S. She, it is hoped, would give evidence that the appellant stayed with her and her now deceased husband on the trip to the South Island and that this was in January 1977 rather than a year later as some prosecution evidence claimed. Mrs S was spoken to by appellant s trial counsel during the trial (not Ms Croft) as were others of the same name. None could be of any assistance. Another witness mentioned is Mr R. The appellant hopes that this witness can give evidence that the first complainant stayed at his home for some days in early 1977. This was where the appellant had boarded. Apparently this is to support his contention that neither he nor the first complainant stayed at a motel at Queenstown. Ms Croft in her memorandum states that Mr R had been spoken to, as was his son-in-law, and they could not be of any assistance. It was considered pointless to call them.
4 The attendance of the appellant s business partner from the time, Kenneth Bonham, is also sought. As a witness at trial he deposed that the appellant moved from Tarras to Clyde in or about January 1978, and also gave evidence of his good character. It appears the appellant wishes to have this witness called to say he did not go back to Dunedin to collect the first complainant as he was working at the time. The appellant wishes to have the evidence of his two sisters to challenge the evidence regarding the locks on the bedroom doors. Before trial they were spoken to by telephone on several occasions and were not prepared to attend the trial unless their travel expenses were met. At best, all they would be able to say is that the complainants mother had told them that the first complainant had said that the appellant had never touched her, and that neither complainant wished to pursue the matter. At trial, balancing the difficulty in obtaining payment of travel costs against the potential of their evidence (which on its face is inadmissible hearsay), the decision was made not to call them. The appellant also wishes his brother, Mr Graham Rodger, the complainants father, to give evidence that the locks which the complainants claimed to have fitted were in fact installed by him as late as 1994. Trial counsel for the appellant attempted to contact Mr Graham Rodger but he did not respond. It was considered unwise to force him to attend not knowing whether he would be of any assistance, or even co-operative. The appellant also wants scientific examination of the locks carried out. He submits this would confirm the date on which they were fitted. Having regard to the peripheral nature of the evidence Ms Croft said she had been reluctant to seek the necessary disbursement from the legal services committee. The appellant wished to have the evidence of Mr R, who is or was the second complainant s boyfriend. A police job sheet disclosed that Mr R had said to a Detective that the second complainant had told him some time ago that the appellant had abused her when she was nine. In her evidence, she stated that it happened when she was 13. Mr R had not made a formal statement to the police. He was summoned by the defence to appear at the second trial. At the Court he was spoken to by appellant s counsel who has
5 informed Ms Croft that Mr R denied making such a statement to the Detective. It was considered there was no point in calling him. The proposition was put to the second complainant and she did not accept it. Next is Mr Kerr, currently resident in Sydney. He gave character evidence for the appellant at trial. The notice of appeal does not state why Mr Kerr should be recalled. The appellant wishes to recall William and Phillip Crossan. They gave evidence at trial relating to entries in the stock book of their former caravan business. Prior to trial the appellant had asked Mr Phillip Crossan to check their records to verify whether he had bought a caravan from them in January 1977, but at the time no such entry was found. When asked to check by the police, between the two trials which were held, Mr Crossan however found the entries mentioned previously. At the second trial the appellant alleged that the entries had been forged and he has requested that a handwriting expert should examine the records. The entries do not show any obvious signs of forgery. Ms Croft does not feel she can justifiably ask the legal services committee for the necessary disbursement. The appellant also wishes to call an aunt of the complainants, hoping she could confirm his evidence regarding the caravan. In her memorandum Ms Croft states it is unrealistic to think this witness could be of any assistance to the appellant. The appellant has also requested expert examination of the photographic exhibits. Photographs were produced of the caravans alleged to have belonged to the appellant while they were parked on the property of the complainants family. These were tendered by the Crown to show that prior to January 1977 he in fact had a caravan on the property, and that he replaced it with a second. The first complainant gave evidence that the photographs were all taken from the same camera. The appellant does not accept this and wants an expert examination of the photographs. Again, Ms Croft has felt unable to request the disbursement from the legal services committee. Even if the photographs were from different cameras it would not make any significant difference to the evidence.
6 The appellant would also wish to have the opportunity to examine the first complainant and her mother further, regarding the caravan issue. He has also referred to a subsequent owner of the caravan which it is accepted he owned at one time. The notice of appeal refers to other matters but we have covered the main points, and said sufficient to indicate the gist of the appellant s complaints. Ms Croft has investigated the multiplicity of matters raised by the appellant and has discussed them with him. In her opinion none are worth pursuing further, and on the information put before us, we are bound to say we agree. With minor exceptions they all relate to matters which could have been looked into prior to trial, and thus, even if the evidence was at all helpful, technically it would not constitute fresh evidence, so as to justify its submission to another jury. At the two trials the appellant was represented by two counsel experienced in criminal jury work. The appellant s grounds also contain some criticism of his counsel. Having looked into these also, and taken them up with the appellant, Ms Croft said there were no sufficiently specific matters which she could advance under this heading. As mentioned there were two trials. Another complaint made by the appellant in the grounds he provided related to the fact that after several days of hearing the first trial was aborted. The gist of his remarks is that he was in a winning position when he was kidnapped. The circumstances in which the trial was aborted have been recorded meticulously by the Judge presiding at that trial. On 25 June 1997, the third day of the trial, the Judge was informed that the accused who had been granted bail the previous evening had surrendered his bail that morning but had overlooked bringing his medication to court. The Judge recorded that the accused s condition was such that as a precautionary move he had been taken to a hospital by ambulance. Later that morning it was expected that he would be fit to return for court to recommence at 2.15pm but in the meantime the accused collapsed. According to the record, this happened when a doctor indicated to the accused that he was well enough to return to court. The trial was adjourned to the following day,
7 with the accused regarded as in custody. On the fourth day the matter was stood down until 12 noon. During the morning it was reported to the Judge that the accused was physically all right but it had been considered prudent to arrange for a neurologist to examine him. This was to happen either that day or the next. After considering the circumstances the Judge decided to discharge the jury and abort the trial. The steps taken and the reasons for the Judge s decisions are all on the record. There is nothing to support the appellant s contentions that the aborting of the trial was engineered as a ploy against his interests. In addition to considering the matters contained in the notice of appeal and in Ms Croft s lengthy memorandum we have read the record of the trial. The appellant was properly represented; the witnesses were adequately cross-examined, and the appellant gave evidence strongly denying the allegations, and called character witnesses. As the Crown has said in its submissions the case turned on credibility. Indeed the prosecution case did not rest on the testimony of the complainants alone but received some support from other evidence including some documentary evidence. The issue regarding the caravan was fully explored. Clearly there was evidence on which the jury could find as it did. No grounds for attacking the conviction having been shown we are bound to dismiss the conviction appeal, which we now do. The notice of appeal stated that the appeal was also against sentence but there is nothing in the appellant s lengthy notes on this subject, nor have any submissions been made against the sentence. The only mitigating factors were that the appellant was aged 69 and in poor health. It is accepted that he has no previous convictions and in other respects has led an exemplary life. Against that there is the element of gross breach of trust, the long period of offending and the fact that there were two separate complainants. The Judge said that but for the appellant s age and health a sentence of 8 years would have been appropriate. Notwithstanding that in respect of one of the complainants the conduct involved repeated offending, by the standards of the time when the offending was committed, 8 years would have been a high starting point. However, the reduction to 5 years made ample allowance for such mitigating factors as there were, and the final sentence cannot be regarded as manifestly excessive. It is supported by R v Elwin CA
290/93, 10 August 1994. The appeal against sentence is therefore also dismissed. 8 Solicitors Helen Croft, Wellington for appellant Crown Law Office, Wellington