CAMPBELL v R [2023] NZCA 396

CAMPBELL v R [2023] NZCA 396 [25 August 2023]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA41/2023[2023] NZCA 396BETWEEN BEAUDEAN KONEKE CAMPBELLAppellantAND THE KINGRespondentHearing: 27 July 2023Court: Wylie, Lang and Woolford JJCounsel: S Brickell for AppellantB J Thompson for RespondentJudgment: 25 August 2023 at 10 amJUDGMENT OF THE COURTThe appeal against conviction and sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Woolford J)[1] On 9 September 2022, following a jury trial in the Rotorua District Court,Beaudean Koneke Campbell was found guilty and convicted of two representativecharges of unlawful sexual connection by digital penetration and attempted sexualviolation by rape of his former partner.1 Mr Campbell was acquitted of nine othercharges.[2] On 9 December 2022, Judge MacKenzie sentenced Mr Campbell to six years'imprisonment in relation to the sexual violation charge, and one year imprisonment inrelation to the attempted sexual violation charge, to be served concurrently.2Mr Campbell now appeals against both conviction and sentence.Factual background[3] At the relevant time the appellant was in a relationship with the complainant.The offending happened after the birth of their son. The appellant would ask thecomplainant for sex. She would say no. She would go to bed and wake up with theappellant trying to "put it in". The complainant explained that she would sometimeswake up to the appellant pulling her pants down. Sometimes she would wake up tofind the appellant had one or two fingers in her vagina. She also said that sometimesthe appellant would be rubbing her clitoris. The appellant's response to thecomplainant's protestations was that he was allowed to. That led her to go to bed withmore clothes on. She started sleeping in her baby's cot to try and stop it happening.She also moved into her son's bedroom. She moved a friend in because she did notfeel safe. The complainant said it happened every night. As the jury found theappellant not guilty of breaching a protection order, which commenced on31 October 2019, it was common ground that the period for the two representativecharges of sexual offending was between 18 June 2019 and 31 October 2019.Grounds of appeal[4] There are two broad grounds of appeal against conviction. Both allegeprosecutorial error.(a) The prosecutor wrongly submitted in both her opening and closingaddresses that the jury could consider previous consistent statementsmade by the complainant which were not in evidence. These errors1 R v Campbell [2022] NZDC 24541 [Sentencing notes] at [1].2 At [49]–[50].were uncorrected. The trial Judge exacerbated the errors by directingthe jury twice that it was permissible for the jury to consider theconsistency of the complainant's evidence in assessing her credibilityand reliability, including by reference to statements not in evidence.The Judge gave a lengthy relevance and repetition direction whichemphasised that previous consistent statements could be consideredeven though they were not in evidence.(b) The prosecutor also wrongly suggested that the appellant's counsel hadan obligation to put to the complainant any inconsistent statements.She went further and submitted that since only one allegedinconsistency existed this amounted to the appellant "clutching atstraws". That submission reversed the onus of proof because itsuggested to the jury that the appellant had an obligation to bringinconsistencies, if they existed, to the jury's attention. Although theJudge directed on the onus and standard of proof, a corrective directionneeded to be given to address the prosecutor's submissions given theprominence and emphasis given to those in her closing address.[5] Taken together, these errors have occasioned a miscarriage of justice byaffecting the outcome or rendering the trial unfair.[6] Alternatively, the appellant appeals against sentence on the basis that it ismanifestly excessive because the starting point adopted by the sentencing Judge wastoo high.Appeal jurisdiction[7] The appellant appeals his conviction under s 229 of the Criminal ProcedureAct 2011 (the Act). The Court must allow the appeal only if satisfied that the jury'sverdict was unreasonable, or a miscarriage of justice occurred that created a real riskthat the trial outcome was affected.3 He appeals against his sentence under s 244 of3 Criminal Procedure Act 2011, s 232(2) and (4).the Act. The Court must allow the appeal only if satisfied that there was an error inthe sentence and a different sentence should be imposed.4Previous consistent statements[8] First, the appellant complains about references to an evidential video interview(EVI) of the complainant by the police lasting four-and-a-half hours, which was notplayed at trial. The complainant gave oral evidence instead over a period ofone-and-a-half days, commencing at 2:30 pm on 5 September 2022 and concluding at4:30 pm on 6 September 2022.[9] Second, the appellant complains about references to text messages which wereexchanged between the appellant and the complainant and not produced at trial. Therewere a selection of text messages produced in booklet form, but the majority of thetext messages were not before the jury. The text messages that were exhibited focusedon messages the appellant had sent the complainant requesting sex. The appellant alsoapologised in the text messages and at one point suggested that the complainant callthe police and have him arrested for sexual assault.Prosecutor's remarks[10] The prosecutor referred to both matters in her opening address to the jury asfollows:That day [the complainant] also told police that this wasn't the first incidentthat had occurred between them. She said there had been a history of abusetowards to her by Beaudean Campbell, and sometime later [the complainant]completed a fulsome statement with the police, detailing that abuse. Shedetailed the history of abuse she had suffered over the years during thatrelationship. She says that during the course of the relationship, Mr Campbellhad been both emotionally and physically abusive towards her. She said hewould constantly want sex from her and he would abuse her when he didn'tget it. She said this reached the point where she, in fact, couldn't even sleepin the same bed as him as the defendant would sexually abuse her in her sleepwhile they were sharing a bed.She says that in the course of the relationship he would ask for sex and shewould often refuse, saying she was tired from looking after two youngchildren or she simply wasn't in the mood. And she said that on numerousoccasions, Mr Campbell simply wouldn't take no for an answer or, if he did,4 Section 250(2).he would wait until she went to sleep and [the complainant] said she wouldwake up to the defendant touching her, to the defendant inserting his fingersinto her genitalia and at times she, in fact, woke up to him penetrating hervagina with his penis, raping her, having sexual intercourse with her while sheslept. She said this happened on numerous occasions.You will also hear from the defendant in the form of text messages that he sentto and from [the complainant] over the course of the relationship. And that isbecause when she made her statement [the complainant] gave the police herphone, and she allowed them to clone it so they could extract any relevantevidence from it. The police did so and they obtained almost 3,000 textmessages between Mr Campbell and [the complainant] between27 November 2019 and 15 August 2020. Thankfully for you, you will nothave to read each and every one of those 3,000 text messages, but certainrelevant text messages will be before you in evidence. The Crown says thatthose text messages will be crucially important to you when you aredetermining whether [the complainant] is telling the truth, because of courseyou will hear from [the complainant] and she will tell you what happened.But, as Her Honour said in giving her opening remarks, there is a number oftechniques you can use when determining whether somebody is credible whenthey are giving their evidence, and one of those techniques is to look atindependent evidence, evidence from the time, evidence of 111 calls, photos,text messages.[11] Then, in leading the evidence of the officer-in-charge, the prosecutor againreturned to the EVI and the text messages as follows:Q. And due to the information that she raised in the video statement didyou arrange for her to do a formal evidential video interview at a laterstage?A. Yes I did.Q. What is an evidential video interview?A. An evidential video interview is it uses an enhanced, what's called anenhanced cognitive model, which essentially is a trained specialistinterviewer will sit down with what we call the complainant, whichwas [named complainant] on this occasion and those interviewers aretrained to extract –Q. Detective constable, you were telling us about what an evidentialvideo interview was?A. It is where a specialist interviewer sits down on video with thecomplainant and goes – gets the most detail about the allegation usinga series of techniques. It's a video-recorded interview.Q. And did [the complainant] complete an evidential video interviewwith Detective Sharlene West-Barron on the 16th of September 2020?A. Yes she did and I was –Q. And –A. – sorry, I was the monitoring officer for that.Q. Right, and so you monitored the interview, was that interviewapproximately four and a half hours in length?A. It was.Q. Based on that interview and the allegations that were made is that howyou formed the charges in respect of this case?A. Yes, based on that interview and then subsequent enquiries that I madedue to the information.Q. I'm just going to – don't worry, we're not going to go through them,I'm just handing you the entirety of the text messages betweenBeaudean Campbell and [the complainant]. Can you just confirm forme that in respect of those text messages you could view all of thetexts between those two, between the dates of the 27th ofNovember 2019 until the 15th of August 2020?A. Yes, that's right.Q. And they're numbered, the various numbers, the last number is 2920and they start at number 191, in between those texts were there othermessages to and from other people from [the complainant's] phone aswell?A. Yes, that's right.[12] Then, in her closing address, the prosecutor focused on the credibility andreliability of the complainant. A critical aspect was her consistency over time. At thebeginning of her closing address, the prosecutor stated:The Crown says you can believe her. The Crown says she was a crediblewitness. She came before you and she told you the truth. She didn't try tohide who she was and she certainly didn't try to make out that she wassomeone that she wasn't. Her evidence was candid and she didn't try tosugar-coat things.And she has been through multiple police interviews. Back in 2020 at thetime of that final assault and later at the time of a four and a half hour policeinterview. She gave the police the contents of her phone so they could clonethem and read all the texts during the course of her relationship withMr Campbell. And then she came before you, warts and all, and in two daysthis week she exposed herself to you.It's useful to consider her evidence as a whole, and what I'm going to suggestto you upfront is that when you go away to the jury room to deliberate youdon't lose sight of your common sense.[13] Towards the end of the prosecutor's closing address, she returned once againto address the jury on the consistency of the complainant over time and identified againthe various occasions on which she had discussed the allegations.Judge's remarks[14] In her opening remarks, the Judge had addressed the jury on how they couldconsider the evidence. This included reference to the consistency of a witness overtime.You might wish to consider whether a witness' evidence is consistent with theevidence of other witnesses. You might hear a witness give evidence and youmight accept that witness' evidence. You might want to test a witness'evidence against the evidence of another witness to see if it is consistent. Youmight want to consider whether a witness' evidence is consistent withobjective evidence that might be given in this trial: documents or photographsfor example. If a witness' evidence is not consistent with more objectiveevidence, what explanation is offered for any inconsistencies? You may wishto consider whether a witness' account is inherently plausible – Does it makesense? Is it like[ly] that people would have acted in the way suggested? Doesit make sense when you run the ruler of common sense over it? You may wishto consider whether a witness has been consistent in their account over timeand if not, why not? It is important that you understand that you must considereach witness' evidence in the context of all the evidence in this case so do notjust look at a witness' evidence in isolation; take into account all of theevidence in the trial.[15] In her summing-up, the Judge gave a direction on assessing credibility andreliability in the context of all the evidence in the case. This included considering theaspect of taking consistency into account over time.[20] Firstly, when you are assessing the credibility and reliability of awitness, you should look at the evidence as a whole as opposed to in isolation.I must emphasise that you must consider each witness' evidence in the contextof all the evidence in this case. You might like to look at various other waysof assessing the evidence. Firstly, you may wish to consider whether awitness' evidence is consistent with the evidence of other witnesses whoseevidence you have accepted. This is testing a witness' evidence against otherevidence. You may wish to consider whether a witness' evidence is consistentwith more independent or objective evidence that has come before us in thiscourt. For example, photographs or the 111 calls. If a witness' evidence isnot consistent with independent or objective evidence, then you might like toconsider whether there is any explanation offered for any inconsistencies. Youmay wish to consider whether evidence is internally consistent. Does it havethe ring of truth? You may wish to consider whether a witness' account isinherently plausible. Does it make sense? Is it likely that people would haveacted in the way suggested? Does it seem to make sense when you run therule of common sense over it?[21] You may wish to consider whether a witness has been consistent intheir account over time and if not, why not? The nature and quantity of anyinconsistencies between a witness' evidence and other reliable evidence mayaffect your assessment of the reliability of a witness' recall. If there is anacceptable explanation for an inconsistency, your assessment of reliabilitymay well be unaffected. The opposite conclusion may be drawn if there is noacceptable explanation for a significant inconsistency.[16] The Judge repeated without criticism the prosecutor's submissions aboutconsistency over time.[98] Ms McConachy submits that [the complainant] has also beenconsistent in her evidence over time and she asks you to take that into account.She spoke to the police, she filed an affidavit in the Family Court and shesubmits also that the text messages show her consistency.[17] The Judge also gave a relevance and repetition direction in relation to priorconsistent statements:[103] Now there was evidence about some earlier occasions that[the complainant] talked about the physical and sexual violence she allegesthat took place. So her speaking to police, her protection order affidavit andconversations that she might have had with others. The relevance of what[the complainant] told others on earlier occasions is that in this case,Mr Campbell says that what [the complainant] has said about the physical andsexual violence never happened and she has made it up. So the purpose abouthearing about these earlier statements is to show that [the complainant] madestatements at an earlier point about the allegations. You need to considerwhether what [the complainant] told others assists with assessing whether shehas made up these allegations and the Crown say that the earlier statementsshow consistency in [the complainant's] allegations. If you accept that theearlier statements show consistency, you can then use them to decide whetherthe events happened.[104] It is important though to remember that repeating something does notnecessarily make it true. An untruthful person might continue to repeat thesame lie and a mistaken person believing themselves to be correct might repeatthe error. Also a truthful person may also repeat their complaints. It is a matterfor you to decide whether the earlier statements assist you here. They are tobe considered as evidence along with everything else.Reversal of onus of proof[18] The appellant also complains that the prosecutor went beyond wronglyreferring to previous consistent statements to make statements suggesting the onus ofproof was reversed, in particular, by submitting that the appellant had an obligation toput any inconsistent statements to the complainant.[19] The passage complained of in the prosecutor's closing address is as follows:And another thing you can look at is someone's consistency over time,because it is suggested this is all a fabrication. It is suggested she's been lying.Well, it's hard to remember a lie. It's hard to remember a very detailed lie,and it's hard especially when, such as the case in New Zealand post COVID,it takes two years for a case to come to trial. Well, [the complainant] is theperson this all happened to. She's had to tell her account time and time again.We've got her affidavit in the Family Court in October 2019. We know shedid a video statement with Constable Bronwyn Allen on the 17th ofSeptember 2020. We know she did a four and a half hour evidential videointerview with the police on the 16th of September 2020. We've seen almosta year's worth of text messages between her and Beaudean Campbell. Andshe spent two days giving evidence before you in court. Monday and Tuesdayof this week. She voluntarily gave the police her phone. Allowed them to gothrough thousands of text messages between her and Mr Campbell. Sheexposed herself to you and she's subjected herself to a lengthycross-examination where she was painted to be a liar and was accused offabricating these allegations. And she never once resiled from her evidence.And you may have worked out how these things work. People give statementsto the police and then they give evidence and they can be picked apart onthose. Where little inconsistencies or large inconsistencies have crept in overtime, they're cross-examined about those. The evidence is tested. That's theway it should be[.][The complainant] has made a number of statements over the years about this.To the police, to the Family Court, and in court before you. The defendant hashad access to thousands of those text messages sent and received betweenthem. Well, consider how many inconsistencies crept in to her account. Shewas cross-examined at some length on one line and one 111 call, whether shesaid "they" were beating, or "he" was beating in the room. One line from a111 call that I suggest was in fact fairly decipherable anyway. She wasn'tcross-examined on the contents of her video statement withConstable Bronwyn Allen. She wasn't cross-examined on her four and a halfhour evidential video statement with the police. She wasn't cross-examinedon any of the text messages that you've seen, and no other texts were put toher. Anything she'd sent that she was asked an explanation of. One line in a111 call. Of all her previous statements, that was it.And I suggest this is a case of a defendant clutching at straws. Of looking forinconsistencies when there are none. She has been completely consistentthroughout all of the statements she's made. It's hard to remember a lie. But[the complainant] wasn't lying to you. She's been consistent in her evidencethroughout and that's because she's telling the truth.DiscussionPrevious consistent statements[20] The complainant gave evidence before the jury over two days. The consistencyof her evidence with what she told others on earlier occasions or what others hadobserved was an important issue in the trial as Mr Campbell maintained that what shesaid about the physical and sexual violence perpetrated on her by Mr Campbell neverhappened and she had made it up.[21] Normally, previous consistent statements are not admissible, but s 35(2) of theEvidence Act 2006 allows previous consistent statements to be admitted in certaincircumstances, including cases where it has been claimed that the witness has made itup. It provides:35 Previous consistent statements rule(2) A previous statement of a witness that is consistent with the witness'sevidence is admissible if the statement—(a) responds to a challenge that will be or has been made to thewitness's veracity or accuracy, based on a previousinconsistent statement of the witness or on a claim ofinvention on the part of the witness; or(b) forms an integral part of the events before the court; or(c) consists of the mere fact that a complaint has been made in acriminal case.[22] Leaving aside the EVI and the text messages which were not produced at trial,there was a substantial body of evidential material which was available to show thecomplainant's consistency over time. This included:(a) Evidence given by a housemate about events in 2019 and in particularbeing told by the complainant that she slept in the lounge becauseMr Campbell was always trying to "help himself on her" and that hehad told the complainant he could "have sex whenever". Thehousemate also heard Mr Campbell tell the complainant that he couldhelp himself to sex. Furthermore, the housemate observed injuries tothe complainant after she had complained that she had been raped.(b) An affidavit dated 16 October 2019 by the complainant in support of awithout notice application for a protection order filed in theFamily Court. It reads in part:Background8. About six years ago Beau starting hitting me with his fist inthe face and body without reason. About three months ago hebegan to rape and attempted to rape me almost every night.Often, I am asleep, and when I wake up he is on top of meeither attempting or penetrating my vagina. Other times hewill ask me to have sex with him during the night, and whenI say "no" he just waits until I go to sleep and then helpshimself.9. He also beats me up using his fists and on the latest occasionwith a hockey stick when I refuse to have sex with him. Themost recent attack happened on Saturday, 12 October 2019when he assaulted me in front of my child.The affidavit annexed photos of the complainant's injuries.(c) Evidence given by another housemate about an argument in March orApril 2020 between the complainant and Mr Campbell in which thecomplainant accused Mr Campbell of rape. The housemate toldMr Campbell "[w]e don't need this shit here" to which Mr Campbellsaid "[n]o, this bitch is trying to set me up".(d) A booklet containing a selection (about 12 per cent) of the 2,920 textmessages dated from 27 November 2019 to 15 August 2020 betweenMr Campbell and the complainant, some of which referred to sexualactivity between the two of them.(e) Transcripts of the 111 calls made by the complainant to the police on17 August 2020.(f) Reference to an initial victim video statement made by the complainantand recorded on 17 August 2020 by an attending officer,Constable Bronwyn Allen, by using her police phone.5(g) Notes from the notebook of Constable Bronwyn Allen on17 August 2020 in which the complainant spoke of a previous incidentof attempted rape, together with photographs taken of complainant'sinjuries.5 The complainant was challenged as to who she was referring to as beating her in a 111 call topolice, so the Crown was granted leave to refer her in re-examination to the victim video statementin which she told the police it was just Mr Campbell who was beating her.[23] The references to the EVI and the text messages not produced in evidence mustbe seen in that context.[24] As to the EVI, the mere fact that a complaint has been made is admissible unders 35(2)(c) of the Evidence Act 2006. The prosecutor did, however, give the jury abroad outline of the complaint in her opening address by reference to the EVI. Whileit is more normal for a prosecutor to advise the jury of the evidence to be called by theCrown without mentioning the source of the evidence, ("she will say") the fact that,in this case, the prosecutor initially told the jury of the complaint by limited referenceto the complainant's EVI ("she has said in an EVI") did not lead to a miscarriage ofjustice. It is relatively common for a jury to learn of a witness's formal writtenstatement or evidential video interview (if not already in evidence) throughcross‑examination or a witness's oral evidence. A jury will also reasonably assumethat a witness made a written statement before giving evidence and there will be arecord of what the witness has previously said.[25] In this case, the complainant gave oral evidence over two days and there is nosuggestion that the evidence she gave then was inconsistent with the limited referencesmade by the prosecutor to the EVI. Those limited references cannot be interpreted as"expressly invit[ing] the jury to consider evidence that was not before them inassessing the credibility and the reliability of the complainant" as the appellantsubmits. The purpose of the prosecutor's submission was simply to show that thecomplainant had been open and transparent. She had willingly been interviewed bypolice more than once and had given them full access to her mobile phone to enableall her text messages to and from the appellant to be extracted. The comment "[i]t'suseful to consider her evidence as a whole" was not an invitation to the jury tospeculate about evidence that was not before them, but rather a comment about theavailability of a wide range of previous consistent statements as listed in [22] above.[26] There is also nothing in the comments made by the prosecutor about the textmessages which were not produced in evidence. It was an admitted fact pursuant tos 9 of the Evidence Act that 2,920 text messages between 27 November 2019 and15 August 2020 were extracted from the complainant's phone and that the "relevantmessages" had been compiled and were produced as Crown Exhibit 5.[27] The prosecutor said nothing about the content of the text messages notproduced in evidence. It was, however, obvious from the s 9 admission and commentsmade by the prosecutor that the Crown took the view that the messages not producedat trial were not relevant to any issue that the jury had to determine. There was nomiscarriage of justice in relation to the production of some text messages and thenon-production of the majority of the messages. Evidence has to be relevant to beadmissible. Nor was there a miscarriage in relation to the reference to the contextwhen the prosecutor has commented "you haven't been pointed to any other textmessages from the defendant which might put this in another context".[28] It was the appellant's trial counsel who had first raised the issue of contextwhen he submitted in his opening statement:The Crown has read out some of [the] texts that they have. Now bear in mindthose texts were in almost 3,000 texts, they are out of context one after eachother, may sound like a sure thing. It is not, it is definitely not, they are out ofcontext and they do not confirm what the Crown [is] asking you to believethey confirm.The comments made by the prosecutor can therefore be seen to be in response to theposition taken by appellant's counsel.[29] As to the comments made by the Judge, at the outset of the trial in her openingremarks, the Judge made it plain to the jury that the only evidence they could take intoaccount was what they heard given as evidence in Court — "[w]e are only concernedwith what is said in this courtroom, nothing else". Then in her closing address, theJudge set out plainly what evidence the jury could take into account. She directed thejury that counsel's addresses were not evidence, but submissions or commentary onthe evidence. Her full remarks are as follows:[9] The first matter is to identify the evidence you may take into account.Firstly, there is the evidence of the witnesses who came along and gaveevidence for both the Crown and the defence. For the Crown a number ofwitnesses gave evidence. Firstly, there was [the complainant] who gaveevidence via a screen. I remind you that is a technique to make a witness feelcomfortable and it says nothing about Mr Campbell. No conclusions adverseto Mr Campbell are to be drawn from the way [the complainant] gave herevidence. The other Crown witnesses were Joseph Archibald fromFrank Street, [the complainant's] father, Betty Mihinui-Brown, the neighbourat Aspen Place, [the complainant's] friend , Sergeant Buckley,Constable Allen and Detective Constable Jamieson. For the defence today,you heard from four witnesses, Aaron Nelson, his daughter Nakita Nelson,Mary Warena from Sapphire Street and Mr Campbell's mother,Rhonda Campbell.[10] There are then the exhibits which have been produced. There are anumber of exhibits in this trial. There are the protection order documents, theDVD of the 111 calls, the transcript of the 111 calls, the Crown photographbooklet, the text message booklet, the summary of facts relating toJoseph Archibald, the DVD interview that Mr Campbell had with police. Thisis all evidence to be taken into account.[11] Barry Archibald's evidence was read to you. That is because he isunwell. There is also the agreed evidence which is set out in the documentcalled the 'section 9 agreement'. Setting out evidence like that is verycommon in trials where a witness' evidence is accepted by both parties. Pleasedo not think either that Barry Archibald's evidence or the agreed evidence isless important simply because it was read out to you. All of this forms part ofthe pool of evidence available for you to consider and take into account.[12] So what is not evidence? Closing addresses, while an important partof the trial process, are not evidence. They are submissions or commentary toyou on the evidence. Both Ms McConachy and Mr Braithwaite havehighlighted pieces of evidence in support of the Crown and defence cases.Whether or not you agree with them is up to you.[30] The Judge was not asked by appellant's trial counsel to direct the jury aboutany errors that may have been made by the prosecutor in the limited references shemade to the EVI and the text messages not produced in evidence. Instead, the Judgegave an orthodox direction regarding how the jury were to deal with previousconsistent statements which referred to the evidence before them. Her directionfollows:[103] Now there was evidence about some earlier occasions that[the complainant] talked about the physical and sexual violence she allegesthat took place. So her speaking to police, her protection order affidavit andconversations that she might have had with others. The relevance of what[the complainant] told others on earlier occasions is that in this case,Mr Campbell says that what [the complainant] has said about the physical andsexual violence never happened and she has made it up. So the purpose abouthearing about these earlier statements is to show that [the complainant] madestatements at an earlier point about the allegations. You need to considerwhether what [the complainant] told others assists with assessing whether shehas made up these allegations and the Crown say that the earlier statementsshow consistency in [the complainant's] allegations. If you accept that theearlier statements show consistency, you can then use them to decide whetherthe events happened.[104] It is important though to remember that repeating something does notnecessarily make it true. An untruthful person might continue to repeat thesame lie and a mistaken person believing themselves to be correct might repeatthe error. Also a truthful person may also repeat their complaints. It is a matterfor you to decide whether the earlier statements assist you here. They are tobe considered as evidence along with everything else.[31] We are not persuaded that there was anything wrong in the Judge's directionsthat may have led to a miscarriage of justice.Reversal of onus of proof[32] On a close analysis of the prosecutor's closing address, we do not consider thather remarks can be regarded as a submission that the onus of proof was in some wayreversed. Accordingly, her comments did not lead to a miscarriage of justice.[33] The prosecutor did not suggest that defence counsel were obliged tocross‑examine the complainant on any inconsistencies. Instead, the prosecutor simplyhighlighted the fact that the only alleged inconsistency on which the complainant hadbeen cross-examined related to a single word in one of the 111 calls. Neither this orthe comment that Mr Campbell was "clutching at straws" can be said to have reversedthe burden of proof. The prosecutor was merely commenting on the limited basis onwhich the consistency of the complainant's account had been challenged.[34] The appellant relies on A (CA90/2017) v R,6 where the prosecutor in his closingaddress had relied on evidence not before the jury (a six-hour EVI given over twodays) as evidence that the jury could rely on as to that complainant's consistency overtime. The Court held that the prosecutor had been wrong to rely upon evidence thatwas not before the jury to support the submission that the complainant had beenconsistent over time.7 That error had been exacerbated by the failure of the Judge tospecifically warn the jury that when assessing the complainant's consistency over timethey could not utilise evidence not given at trial.8[35] However, the prosecutor in A (CA90/2017) v R went further than the prosecutorin the present case. In the earlier case, the prosecutor expressly told the jury "you cantake it that what she said in evidence was completely consistent with what she said6 A (CA90/2017) v R [2017] NZCA 278.7 At [54].8 At [55].15/16 months ago when she first got back from India".9 The prosecutor also wronglysubmitted "defence counsel is obliged to identify and illustrate and put to you anyinconsistencies between her account back then, her account in evidence".10[36] Moreover, despite the errors identified on the part of the prosecutor, the Courtfound that there was no miscarriage of justice because the jury's verdicts clearlyindicated that they did not find the complainant's evidence by itself sufficientlycredible and/or reliable to support a conviction of any charge. For one of the chargesthere was an eyewitness and for another there seems to have been a recent complaintwitness. The appellant in that case had also made admissions to most of the chargesupon which he was convicted.[37] The present case does not approach the circumstances described inA (CA90/2017) v R. There was no suggestion that defence counsel had an obligationto identify and describe any inconsistencies. Nor did the prosecutor ask the jury toassume that everything the complainant had said in evidence was consistent with herEVI. The prosecutor did not submit that the apparently consistent EVI might beparticularly truthful or reliable because the complainant had been interviewed by a"specialist interviewer".[38] Again, the Judge was not asked by appellant's trial counsel to direct the juryabout any errors that may have been made by the prosecutor in inferring that theappellant had the burden of proof on him. Instead, the Judge gave an orthodoxdirection on the burden of proof at several points throughout her summing-up. Itwould have been clear to the jury that the burden of proof lay on the Crown from startto finish. A corrective direction by the Judge was not required. There was nomiscarriage of justice.9 At [50].10 At [50].Sentence appealDistrict Court sentence[39] After setting out the facts of the offending, the Judge turned to the guidelinecase of R v AM.11 She noted the Crown's submission that the appropriate starting pointwas six years' imprisonment and the defence submission that the starting point shouldbe three years' imprisonment. Before determining the appropriate band for theoffending, the Judge found the following culpability factors to be present:(a) The degree of psychological harm.12 It was clear the offending had atraumatic effect on the complainant.(b) The degree of violation.13 Digital penetration is highly invasive. Theduration of the offending was also a significant culpability factor.(c) The complainant's vulnerability.14 She was in bed asleep when thesexual activity occurred.(d) The breach of trust.15 The appellant and the complainant were in arelationship, had children together and the offending took place athome.(e) The moderate level of premeditation.16 This arose from the repetitivenature of the sexual acts and the fact that the appellant knew how thecomplainant viewed his sexual advances and so he acted when she wasasleep.[40] Given the identified culpability factors the Judge placed the offending towardsthe bottom of unlawful sexual connection, band 2, as set out in R v AM.17 After11 District Court judgment, above n 1, at [10] citing R v AM (CA27/2009) [2010] NZCA 114, [2010]2 NZLR 750.12 At [12].13 At [13]–[14].14 At [16].15 At [17].16 At [18].17 At [22].reviewing a number of previous cases, the Judge said she considered the case to beone of moderate seriousness, which warranted a starting point of six years'imprisonment.18[41] As to matters of personal mitigation, the Judge found that the appellant's lackof acceptance of the jury's verdict precluded a discount for his lack of relevantprevious convictions.19 The Judge then reviewed the appellant's background as setout in a pre-sentence report and an email from his mother. She noted that there wasnothing in the information then before the Court which would indicate that there werefactors which would amount to a causative contribution to the offending.Mr Campbell's denial of the offending also made it difficult to identify any type ofcausative contribution in terms of the offending. There were therefore no matters ofpersonal mitigation that could be taken into account in terms of reducing thesentence.20 The starting point of six years' imprisonment became the end sentence.Appellant submissions[42] Counsel for the appellant submits that the Judge overstated the appellant'sculpability in her assessment of the aggravating features in R v AM. The most seriousaggravating feature of the offending was the complainant's vulnerability because shewas asleep at the time of the offending. There was a breach of trust, but not as seriousas in cases of sexual offending against children. The scale of the offending can bedescribed as low to moderate, occurring over a four-month period. Counsel submitsno other aggravating features are present to a moderate degree.[43] Counsel also submits that the starting point is too high when compared withoffending of a similar scale involving child sex offending. Counsel refers toT (CA131/2018) v R,21 in which this Court gave examples of cases where a startingpoint around the six-year mark was appropriate for sexual offending against children,some of whom were in loco parentis or a close position of trust to the victim.2218 At [27].19 At [34].20 At [46]–[48].21 T (CA131/2018) v R [2018] NZCA 481.22 At [24].[44] Counsel notes that Taiatini v R,23 was referred to by the sentencing Judge as anexample of offending against an adult victim where the lead offence was sexualviolation by unlawful sexual connection (digital penetration). In that case, afour-and-a-half year starting point was upheld by this Court on appeal.Discussion[45] In R v AM, the Court of Appeal stated that a band of four to 10 years'imprisonment was appropriate as a starting point for cases of unlawful sexualconnection of relatively moderate seriousness involving two or three factors increasingculpability to a moderate degree.24 Appellant's counsel acknowledges the followingculpability factors were present:(a) the complainant's vulnerability;(b) the breach of trust (but not as serious as sexual offending againstchildren); and(c) the scale of offending over a four-month period.[46] Counsel submits that no other aggravating factors were present to a moderatedegree. Even without the other aggravating factors identified by the Judge as notedabove in [39], particularly the degree of violation and the psychological harm to thecomplainant, the offending clearly falls within the band of four to 10 years'imprisonment. The question is whereabouts on that range does the offending fall. TheJudge placed it in the lower end of the range. Appellant's counsel would place it atthe lowest end of the range.[47] Counsel cites T (CA131/2018) v R.25 That involved offending by a man againsthis stepdaughter who was aged between 10 and 14 years. He was found guilty of threecharges of sexual violation by unlawful sexual connection and one charge ofcommitting an indecent act on a young person. The charges covered a total of six23 District Court judgment, above n 1, at [26] citing Taiatini v R [2013] NZCA 593.24 R v AM, above n 11, at [117].25 T (CA131/2018) v R [2018] NZCA 481.incidents of digital penetration and a further incident where he had touched the outsideof her vagina. A six-year starting point was thought to be appropriate. The Courtreferred to three cases of similar offending against children where a six-year startingpoint had been adopted.26 We accept the Crown's submission that the differencebetween these cases and the present case is that all of them involved far fewer incidentsof offending. In contrast, the offending in the present case happened on many moreoccasions—very frequently throughout the four-month period.[48] The case Taiatini v R referred to by the Judge did not involve a childcomplainant either, but, again, the scale of the offending was much lower.27 That caseinvolved offending over a five-day period with digital penetration occurring on threeoccasions, not four months of near-constant offending. The Judge held that a higherstarting point, rather than the four-and-a-half years' imprisonment adopted in Taiatini,was required in the present case to reflect the greater extent of the offending.28[49] We are not persuaded that the starting point adopted was outside the availablerange or that the final sentence was manifestly excessive.Result[50] The appeal against conviction and sentence is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent26 At [24].27 Taiatini v R, above n 23.28 District Court judgment, above n 1, at [27].