SEETHA RAMA RAO SALVAJI v R [2020] NZSC 33

SEETHA RAMA RAO SALVAJI v R [2020] NZSC 33 [15 April 2020]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360350.htmlIN THE SUPREME COURT OF NEW ZEALANDI TE KŌTI MANA NUISC 3/2020[2020] NZSC 33BETWEEN SEETHA RAMA RAO SALVAJIApplicantAND THE QUEENRespondentCourt: Glazebrook and Ellen France JJCounsel: Applicant in personJ E Mildenhall for RespondentJudgment: 15 April 2020JUDGMENT OF THE COURTThe application for leave to appeal is dismissed.____________________________________________________________________REASONSIntroduction[1] Mr Salvaji, the applicant, was convicted after trial of historical sexualoffending against a young relative.1 The incidents giving rise to the charges took placeover a two year period at a time when the complainant was 10 and 11 years old andthe applicant was in his early 30s.2 The applicant was sentenced by the trial Judge,1 The applicant was acquitted of one of the 12 charges he faced.2 At the time of trial the complainant was 25 years old.Judge Down, to a sentence of 14 years' imprisonment with a minimum period ofimprisonment of seven years.3[2] The applicant appealed unsuccessfully to the Court of Appeal againstconviction and sentence.4 He now seeks leave to appeal to this Court againstconviction and sentence on the basis that there is a risk of a miscarriage of justice.5Background[3] The complainant and her family lived close to the applicant and his family overthe relevant period. She described a range of sexual activity over a period ending inmid-2005 ranging from indecent assaults to sexual violation by unlawful sexualconnection and rape. She did not disclose any offending until 2014 when she wroteto a friend and later, in 2015, sent a copy of the same letter to another relative.A complaint to the police was not made until July 2017.[4] At the suggestion of the police, the complainant telephoned the applicant andput her allegations to him. The Court of Appeal noted that parts of the conversation"were capable of being construed as admissions".6 The call was recorded and formedpart of the evidence at trial along with the translation of the call into English by aninterpreter.[5] The appeal to the Court of Appeal focussed on alleged failures by theapplicant's trial counsel including the fact the applicant and other witnesses,particularly the applicant's wife, were not called to give evidence, and as to the wayin which counsel cross-examined both the complainant and the interpreter whotranslated the record of the telephone conversation. In addition, there were challengesto the admission of evidence from the friend and the relative as to the letters theyreceived and as to the admissibility of the recorded telephone call.3 R v Salvaji [2019] NZDC 9078.4 Salvaji v R [2019] NZCA 611 (Cooper, Lang and Mander JJ) [CA judgment].5 Senior Courts Act 2016, s 74(2)(b).6 CA judgment, above n 4, at [5].[6] The Court of Appeal had evidence from the applicant and from trial counsel.The Court rejected the complaint about counsel advising the applicant not to giveevidence, concluding that the judgement made was one another competent counselmay well have made. Nor did the Court consider this was a case which fell "at thatend of the spectrum where [trial counsel's] advice amounted to an error that effectivelyprevented [the applicant] from presenting his defence".7 The Court accepted trialcounsel's evidence that he did not have instructions to call the applicant's wife as awitness. The Court said that decision was one open to competent counsel and, in anyevent that decision could not have affected the outcome of the trial.[7] The Court considered there was nothing of significance in any of the criticismsrelating to cross-examination, and noted the cross-examination of the interpreter wassuccessful in some respects. On the admissibility of the evidence relating to the letters,the Court took the view that the letters responded to the claim of invention inherent inthe defence that the offending never occurred. The Court found that the evidence ofthe telephone conversation was not unfairly obtained and was properly admitted.The proposed appeal[8] On the proposed appeal, the applicant would essentially seek to re-run thearguments made in the Court of Appeal. He maintains his complaints against trialcounsel as to the cross-examination of the complainant; generally not following hisinstructions; not calling possible witnesses, particularly his wife; and being lesscompetent than the prosecutor. In addition, he continues to challenge what can bemade of the recorded telephone call, pointing to aspects which have been misconstruedor impacted by the translation or the transcript. He also sees the conversation asevidence of the manipulative approach of the complainant. In relation to this allegedmanipulation, he argues the complainant has falsified her stories with a view toframing him or that she is delusional, and he advances possible motives for herapproach such as animosity between the families. On sentence, one of the points hewishes to make is that the relevant period of offending should be calculated as oneyear, not two. Another is that he has a lot he can, and has, contributed to society.7 At [19].Assessment[9] We are satisfied the application does not meet the criteria for leave to appeal.The proposed appeal would be fact-specific. No issue of general or public importancearises.8 Nor is there an appearance of a miscarriage of justice.9 The matters that theapplicant wishes to raise were generally considered by the Court of Appeal andnothing raised by the applicant, including his specific criticisms of the Court'sdecision, gives rise to the appearance of an error in that assessment. We add that, ashas been noted, trial counsel did obtain an acceptance that phrases used in theconversation might have had meanings favourable to the applicant.10 The applicant'salternative interpretation of the recorded telephone conversation was before the jury.11Nor does the applicant point to any matter that gives rise to any error in the Court ofAppeal's assessment of the sentence appeal.[10] The application for leave to appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent8 Senior Courts Act, s 74(2)(a).9 Section 74(2)(b).10 The applicant relies, for example, on a phrase which was initially translated as "naïve girl". Theinterpreter accepted that this could mean "mad ["as in crazy"] girl". Further, as a result ofcross-examination of the interpreter, trial counsel was able make a submission in closing that in apart of the conversation the applicant had been referring to an incident when he said thecomplainant had climbed into his bed.11 The applicant is correct in his reply submission that, contrary to the submission for the respondentwhich refers to an uncorrected exhibit, the interpreter accepted at trial that the word "weak" in aphrase translated as "that weak moment made me to do that" could be translated as "the" or "that"moment.