SALVAJI v R [2019] NZCA 611

SALVAJI v R [2019] NZCA 611 [4 December 2019]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 AOTEAROACA233/2019[2019] NZCA 611BETWEEN SEETHA RAMA RAO SALVAJIAppellantAND THE QUEENRespondentHearing: 9 October 2019Court: Cooper, Lang and Mander JJCounsel: M I Koya for the AppellantJ E Mildenhall for the RespondentJudgment: 4 December 2019 at 10 amJUDGMENT OF THE COURTA The application to adduce fresh evidence on the sentence appeal is grantedin part.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] Mr Salvaji was convicted by a jury of multiple charges of sexual violation andindecent assault of a young girl when she was aged between 10 and 12 years.He appeals both his convictions and a 7-year minimum period of imprisonmentimposed on a sentence of 14 years' imprisonment.1Factual background[2] The 10-year-old complainant began living next door to Mr Salvaji when sheand her mother joined her father in New Zealand from India in August 2003.The complainant's mother is related to Mr Salvaji. At that time, he and his wife hadtwo preschool children. Unsurprisingly, the two families had a lot to do with eachother. They socialised together and the complainant was a frequent visitor toMr Salvaji's home.[3] The complainant alleged that during 2003–2005 she was sexually abused byMr Salvaji. He was convicted at trial on 11 charges that reflected that repeatedoffending:2(a) On one occasion, Mr Salvaji took the complainant and other childrento the Mount Albert wave pools. He went on the waterslide with herand touched her breasts as they went down the slide together (a chargeof committing an indecent act on a girl under the age of 12 years).(b) On multiple occasions, Mr Salvaji would touch and suckthe complainant's breasts while she was sitting on his lap on the couchwhen she would visit his house (a representative charge of committingan indecent act on a girl under the age of 12 years).(c) Mr Salvaji had sexual intercourse with the complainant in a bedroomat his house which caused her vagina to bleed (a charge ofsexual violation by rape).1 R v Salvaji [2019] NZDC 9078 at [52]–[53].2 Mr Salvaji was acquitted on one charge of committing an indecent act on a girl aged under 12 yearsthat alleged he kissed the complainant's face and abdomen during her 10th birthday party.(d) On another occasion, Mr Salvaji took the complainant into hisbedroom, pulled her on top of him and had sexual intercourse with her(a charge of sexual violation by rape).(e) There was an occasion when Mr Salvaji was vacuuming an empty roomand he had sexual intercourse with the complainant on the floor(a charge of sexual violation by rape).(f) While Mr Salvaji was in his car with the complainant he inserted hisfingers into her vagina (a charge of unlawful sexual connection).(g) There was also an occasion when Mr Salvaji digitally penetratedthe complainant while viewing pornography on his computer (a chargeof unlawful sexual connection).(h) Other charges (including three representative charges) reflectedrepeated acts of indecent assault, rape and unlawful sexual connectioninvolving both the digital penetration of the complainant's vagina andthe licking of her genitalia.[4] The offending came to an end around June 2005, when there was a falling outbetween the two families and from which point there was little contact between them.The complainant did not disclose any offending until 2014 when she sent a letter to aclose friend and subsequently, in 2015, sent a copy of the same letter to her cousin.She eventually made a complaint to police in July 2017.[5] At the police's suggestion, the complainant phoned Mr Salvaji and confrontedhim with her allegations. Statements made by Mr Salvaji during the course of theirconversation were capable of being construed as admissions. The telephone call wasrecorded and played at the trial.The appeal[6] Mr Salvaji's appeal is focussed on alleged failures by his trial counsel toproperly conduct his defence. He maintains that a failure to adduce evidence and toput certain matters in cross-examination has resulted in a miscarriage of justice.Mr Salvaji further alleges that evidence of prior statements made by the complainantwere inadmissible and the subject of misdirection by the trial Judge. He also seeks tochallenge the admission of the recorded telephone conversation that was arranged withthe assistance of the police.[7] We received evidence from Mr Salvaji and his trial counsel, Mr Keam.Both were cross-examined on their affidavits.Complaints against trial counselElection not to give evidence[8] Mr Salvaji complains that Mr Keam erred by persuading him not to giveevidence. On behalf of Mr Salvaji, Mr Koya submitted that, because of "the volumeand quality" of the evidence presented by the Crown, Mr Salvaji should have beenadvised to give evidence. In making that submission, Mr Koya emphasised thatMr Salvaji had not made a statement to the police and that the complainant did notmake any concessions during the course of her cross-examination.[9] At trial, the defence contended that the complainant had been infatuated withMr Salvaji when she was a child. An occasion was put to her when she had climbedinto bed with Mr Salvaji when he was asleep. He had woken and ordered her to leave.In response, the complainant stated that she could not remember ever getting into bedwith him. While she accepted that she may have, she was certain there had not beenan incident where he had ordered her out of his room. This was part of the defencecase that the acts described by the complainant had never happened and thatthe complainant, after the passage of many years, had misconstrued the single incidentof being in bed with Mr Salvaji.[10] The defence emphasised the complainant's recollections having come to her in"flashes" and that her narrative had grown after the estrangement of the families.Any arguable admissions by Mr Salvaji during the course of the telephoneconversation were said to be explicable when considered against the single incidentand two people talking past each other about what the complainant was referencing.[11] On the morning of the last day of the Crown's case, Mr Salvaji sent an emailto Mr Keam in which he provided his critique of the complainant's evidence andcomments about the telephone conversation between himself and the complainant.This commentary was put forward by Mr Salvaji under the heading "My Submissionfor Your Final Speech". Mr Koya submitted that Mr Keam ought to have known thathe could not repeat such submissions to the jury without Mr Salvaji giving evidencehimself, and that it was apparent from the content of the email that Mr Salvaji wasfinding it difficult to decide whether or not to give evidence.[12] At the conclusion of the Crown case, Mr Keam requested an adjournmentbefore meeting with Mr Salvaji in the custody cells to discuss whether or not he shouldgive evidence. We have received both Mr Salvaji's and Mr Keam's accounts of thatmeeting. Their recollections differ but we do not consider to any critical degree.Mr Salvaji maintains that Mr Keam's statements and comments were designed topersuade him not to give evidence.[13] For his part, Mr Keam accepts that was his ultimate advice, but he considersthat much of what Mr Salvaji reports him as saying at that time is incorrect.He considered that Mr Salvaji's defence, that the offending had not occurred and thatthe complainant was either mistaken or lying, was clearly before the jury. His viewwas that little was to be gained by Mr Salvaji giving evidence. He recalls his clientasking him directly what he should do and him advising Mr Salvaji that it had to behis decision. Mr Salvaji does not contest that this was other than his understanding ofthe position.[14] Mr Keam received written instructions that Mr Salvaji elected not to giveevidence. That document took the form of a memorandum that set out the advantagesand disadvantages of Mr Salvaji giving evidence. It explained that by giving evidencehe would have the opportunity to explain the incident where the complainant climbedinto bed with him (and how he had mistakenly believed it was his wife), and that itwas this incident which he was apologising for in the telephone call. Against that wasthe jeopardy Mr Salvaji may be putting himself in by exposing himself tocross-examination, particularly regarding his explanation of the telephone call and thathe may inadvertently make admissions that may harm his case.[15] Mr Keam advised that he could not give evidence in his closing address butthat he could invite the jury to draw inferences about the evidence, in particular aboutthe content of the telephone call and the incident in the bed, and invite the jury thatthey could not be sure of the truthfulness or the correctness of the complainant'saccount. By "only a fine margin", Mr Keam's advice was not to give evidence.However, it was emphasised to Mr Salvaji that the decision was his and that Mr Keamcould only offer an opinion. It needed to be appreciated that the decision could not bechanged later if regretted after verdict.[16] In his evidence, Mr Salvaji suggested that he had insufficient time to readthe three-page memorandum that Mr Keam had prepared despite signing andinitialling each page of the advice and the instructions. We reject Mr Salvaji'sevidence on that point. Mr Keam's evidence was that during their meeting he readthe document aloud to Mr Salvaji and waited while Mr Salvaji read it to himself.The decision whether or not to give evidence was no doubt a difficult one forMr Salvaji to make and a source of considerable stress. That is apparent fromthe email he sent to his counsel earlier that morning that referred to the decision hehad to make and that he had not been able to sleep.[17] While Mr Salvaji and Mr Keam differ as to the detail of the conversation thattook place between them during their meeting, it is apparent even from Mr Salvaji'sevidence that the issue was discussed in some detail. We consider it inconceivable inthe circumstances that Mr Salvaji, who impressed as an intelligent and confidentperson who assiduously prepared for his trial and actively engaged with his counsel,would not have carefully read the document regarding whether to give evidence priorto signing instructions not to do so.[18] In addition to the email of that morning there were other emails that Mr Salvajisent to Mr Keam over the course of the following days when he provided Mr Keamwith some further "thoughts and points" for his counsel's closing address. We aresatisfied that Mr Salvaji gave the matter very careful consideration and that hisdecision was an informed one. While Mr Keam's comprehensive advice no doubtinfluenced his decision, we are satisfied that Mr Salvaji understood the decision washis to make. We reject any suggestion that Mr Keam proceeded in respect of thisfundamental decision without having obtained appropriate instructions.[19] Mr Koya was critical of Mr Keam's advice not to give evidence. As we haveacknowledged, the choice whether to do so was a difficult one. Mr Keam himselfheavily qualified his opinion and provided his client with the competingconsiderations before stressing to him that the decision was solely for him.We acknowledge that the case faced by Mr Salvaji was relatively strong.The complainant's account was supported by her earlier statements, and the recordedtelephone conversation was capable of being accepted by the jury as includingadmissions. However, we do not consider that this case falls at that end of thespectrum where Mr Keam's advice amounted to an error that effectively preventedMr Salvaji from presenting his defence.3[20] It is apparent from counsels' addresses and the Judge's summing up thatMr Salvaji's denial and explanations for how the complainant may have come to makeher allegations and the confusing nature of the telephone conversation were all beforethe jury for its consideration. Mr Keam, as he explained to his client, saw advantagesin avoiding a direct contest between Mr Salvaji and the complainant in favour ofimpressing upon the jury the need for it to be able to exclude reasonable doubt.We consider that was a reasonable strategy in the circumstances.[21] Trial counsel are required to provide advice by exercising their best judgmentin the circumstances as they exist at the time. We consider the judgment exercised byMr Keam was one that another competent counsel may well have made in such a trial.Simply because Mr Salvaji now considers, in hindsight, that the acceptance of hiscounsel's advice may have reduced the chance of him achieving a favourable outcome,does not provide grounds for a successful appeal.4 A miscarriage of justice will notarise because some other decision is now thought, with the benefit of that hindsight,to have offered a better prospect of acquittal.3 Scurrah v R CA159/06, 12 September 2006 at [14].4 At [17]–[18].[22] For these reasons we do not consider Mr Salvaji's decision to not give evidencenor his counsel's advice to that effect resulted in any miscarriage of justice.Videos and photographs[23] Mr Salvaji complained of a failure by his counsel to use videos of the twofamilies socialising and of the complainant happily being in his close company at thetime of the alleged offending. Mr Koya submitted that this material could have beenput to the complainant in cross-examination.[24] Mr Keam confirmed that Mr Salvaji supplied him with several videos ofthe complainant and the two families. He had initially thought this material may behelpful but, after consulting with a senior barrister, considered that on reflection itcould potentially be detrimental to Mr Salvaji's case. He obtained written instructionsfrom Mr Salvaji regarding the issue. Those instructions recorded how Mr Keamexplained to Mr Salvaji that, in his view, the risks of playing the videos outweighedthe potential benefit. A particular concern was that the complainant was considered tolook reasonably mature for her age. It was considered that this feature may havepotentially disabused jurors of any existing impressions they may have had about thelikelihood of an 11-year-old participating in the sexual acts described bythe complainant.[25] We consider the advice provided by Mr Keam was reasonable and typical ofthe type of assessment required to be made by trial counsel exercising their tacticaljudgment. We do not accept the fact the complainant appeared comfortable in thecompany of Mr Salvaji was of much assistance to his defence, particularly in light ofthe counterintuitive evidence that children sexually abused by those well-known tothem will possibly have become physically and/or emotionally close and will continueto have contact and even affection for the offender. In the present case,the complainant's narrative of abuse over the two-year period was of her having closeongoing contact with Mr Salvaji. The videos were not inconsistent with that type ofrelationship. Putting this material to her might have elicited an explanation from herwhich damaged the defence case.[26] Mr Koya was also critical of Mr Kean not using photographs of the wave pools,where some of the offending took place, in his cross-examination of the complainant.However, it is not clear, nor was it explained, how those photographs would haveassisted the defence.Failure to call Mr Salvaji's wife as a witness[27] A further criticism of counsel was the decision not to call Mr Salvaji's wife asa witness at his trial. Mr Keam reviewed a statement that she had prepared.His evidence was that he had discussed the possibility of Mr Salvaji's wife givingevidence but that this was not progressed. He had reservations about calling her asa witness and he received no instructions from Mr Salvaji to do so.[28] As with the issue regarding the photographs and videos, this was a matter ofjudgement for trial counsel who was best placed to make the required assessment inthe best interests of his client. Whether or not to call Mr Salvaji's wife is not the typeof fundamental decision capable of giving rise to a miscarriage, particularly in theabsence of counsel having any instructions from his client to do so.5 As the Crownacknowledged, the witness may have been able to provide evidence of the limitedopportunities Mr Salvaji had to be alone with the complainant and therefore to offendagainst her, but, against that, she was not independent and had expressed jaundicedviews about the complainant; that she was promiscuous, jealous and vindictive.[29] Illustrative of how counterproductive the wife's evidence may have been wereher observations of how her husband used to "pamper" the complainant, and that heryoung son would cry and try to pull her off Mr Salvaji when "she used to tease [her]son by sitting next to [him]". We note Mr Koya's observation that irrelevant materialfrom the wife's statement could have been removed and selected parts led as part ofthe defence case, but there was always the risk of potentially damaging evidence beingelicited under cross-examination. In summary, we consider the decision not to callthe wife was one that was open to competent counsel and, in any event, that decisionwas not one capable of affecting the outcome of the trial.5 Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [65].Not calling a psychologist[30] Mr Koya was critical of a failure by counsel to call a psychologist to commenton how the complainant described having "developed" her allegations of sexual abuseover a number of years. It was suggested that it was necessary to find evidence whichwould minimise the impact of the counterintuitive evidence, which Mr Koya referredto as having been given by a Dr Blackwell.[31] This criticism is without foundation. The counterintuitive evidence wasadduced as part of a statement of agreed facts in a manner that is now common in trialsof this type. The Crown did not call a psychologist as a witness. No brief of evidencefrom a psychologist was tendered by Mr Salvaji in support of this ground to inform usas to what that evidence would have been, nor how it would have differed from theinformation set out in the statement of agreed facts regarding the incremental orgradual reporting of sexual abuse.[32] It was also suggested by Mr Salvaji that Mr Keam had failed to call apsychologist to give evidence or obtain a report about the complainant's"psychological problems". Again, there is no basis for such a suggestion and,understandably, counsel rejected such a course. For completeness, we also record afurther criticism of counsel being his failure to call a number of people whose nameshad been supplied to him by Mr Salvaji. No sworn material was filed from thesesuggested witnesses, and the detail provided by Mr Salvaji of the information some ofthem could provide was of only marginal value. The point has no merit.Cross-examination[33] Mr Koya made a number of criticisms of trial counsel's cross-examination ofthe complainant.Failure to cross-examine about mother's protectiveness[34] The complainant in her evidential video interview made a number ofobservations about how her mother was protective of her and would make sure thatshe was in the company of other children. She said her mother "would make sure thatI'm not really around [Mr Salvaji] much ...". Mr Koya submitted that the mother'smistrust of Mr Salvaji demonstrated a lack of opportunity for the offending to haveoccurred and was inconsistent with the Crown's case. Mr Koya claimed that Mr Keamhad failed to cross-examine the complainant about this topic.[35] The criticism is without foundation. Mr Keam put the following tothe complainant:Q. Now you've said your mother was quite protective of you then backthen?A. Yes.Q. How protective?A. Really protective.Q. Kept a close eye on you, would that be fair?A. Yeah.[36] Having obtained the complainant's confirmation of what she had said in herevidential video interview about her mother's protectiveness, nothing more was to beachieved by providing the witness with an opportunity to qualify her concession.In his closing address, Mr Keam emphasised that the complainant's mother was veryprotective and kept a close eye on her.Cross-examination of the interpreter[37] Mr Koya was critical of Mr Keam not having "pressed" the interpreterregarding answers obtained in response to questions about the translation ofthe telephone conversation which took place in the Telugu language. Two parts ofthe cross-examination were the focus of Mr Koya's submissions. First, Mr Keam'squestioning of the translation of a phrase "chikka mammal". Mr Keam put it tothe interpreter that the term "doesn't necessarily mean 'Naïve girl'". The interpreteragreed that the words could also mean "mad girl". Mr Koya was critical that"no agreement" was reached regarding the translation of those words. We do notconsider the point has any merit. The interpreter's acceptance that the phrase couldhave the meaning proffered was favourable to Mr Salvaji's case.[38] Secondly, in accordance with his instructions, Mr Keam questionedthe interpreter about the presence of words uttered by Mr Salvaji in a passage ofthe conversation that were capable of meaning "that day". Contrary to Mr Koya'ssubmission, the interpreter agreed that the relevant words used by Mr Salvaji inthe Telugu language could be translated as "that day" or something similar.That concession enabled Mr Keam to suggest to the jury, as he did in his closingaddress, that Mr Salvaji had been referring in the telephone conversation tothe incident when the complainant had allegedly climbed into his bed. We see no faultin this successful aspect of Mr Keam's cross-examination.[39] Finally, it was submitted that an appendix to the transcript of the telephoneconversation should have been provided to the jury detailing the changes tothe translation that had been conceded in cross-examination. We do not consider thatomission is capable of giving rise to any miscarriage. The cross-examination ofthe interpreter obviously took place in front of the jury. There is no reason to believethey were not cognisant of the comments and concessions made by the interpreterduring her cross-examination and emphasised by Mr Keam in his closing.Failure to put to the complainant Mr Salvaji's interpretation of the telephoneconversation[40] Mr Salvaji complains that Mr Keam did not put his version or interpretation ofthe telephone conversation to the complainant. We consider that critique is withoutmerit. The complainant was cross-examined about Mr Salvaji's account of her havingclimbed into his bed with him when he was asleep. She did not remember such anevent, although conceded it was possible. In light of her answers, it would have beenillogical and likely counterproductive, in the context of questioning aboutthe telephone conversation, to have again referred her to an event about whichthe complainant had no memory.[41] It also followed from the complainant's earlier evidence about that allegedincident (that she did not recall such an occasion) that there was no obligation oncounsel to put Mr Salvaji's interpretation of the telephone conversation tothe complainant. Furthermore, to have done so risked adverse answers, particularlyhaving regard to the concession that was obtained from the translator, discussed earlierat [38] above.Other criticisms[42] Mr Koya advanced a number of other criticisms regarding Mr Keam'scross-examination, none of which we consider has merit. Mr Keam was obliged toput the defence case to the complainant, and to provide her with an opportunity tocomment on the circumstances that had caused her to recollect the various instancesof sexual abuse, particularly when those surrounding circumstances were to bethe subject of critical comment.[43] An example upon which Mr Salvaji relied to criticise his trial counsel was apiece of cross-examination that related to a conversation the complainant had with agroup of friends about sexual lubricants that she said had brought on one of her"flashes" and had helped her to recover a memory about Mr Salvaji using oil.[44] While there may have been a risk of reinforcing that part of the complainant'sevidence by again questioning her about that event, the circumstances of thisdisclosure may well have given the jury reason to pause. Leaving aside professionalobligations that attach to cross-examination on topics that are intended to bethe subject of adverse comment, there were also tactical advantages in emphasisingcircumstances that may be thought to detract from the reliability of the complainant'sdisclosures.6[45] This item of cross-examination, as with others that were raised, includingMr Keam's cross-examination of the complainant about arrangements made bythe police with her regarding the recorded telephone conversation, are matters whichrequire the exercise of judgement by trial counsel. This Court has previously observedthat the cross-examination of a complainant in sexual abuse cases involves a"tricky forensic task".7 Counsel may lose favour with a jury if he or she is seen to be6 Evidence Act 2006, s 92(1).7 S (CA361/2010) v R [2013] NZCA 179 at [60].unnecessarily "brow beating" the witness, and there is always the risk of unwittinglyeliciting further detail of the alleged offending.[46] We accept the Crown's submission that an appeal does not provide anopportunity for minute examination of whether some aspect of the defence could havebeen dealt with differently or better.8 We consider the defence was properly and fullyput to the complainant during the course of her cross-examination and that, in theabsence of any fundamental error, a complaint that the cross-examination could havebeen conducted more effectively does not provide an adequate ground for a successfulappeal.9[47] Many of the matters raised by Mr Koya either concerned matters that were saidto have been inadequately pursued by trial counsel or were claimed to have resultedin undue emphasis on evidence that was prejudicial to Mr Salvaji's case. As we havealready observed, cross-examination involves a judgement which in turn involvesassessments of degree. We consider the matters raised fall within the latitude that isto be afforded to counsel in approaching the task of cross-examination. Had a differentcourse been adopted in respect of certain topics that too could potentially haveattracted criticism, albeit of a different kind to that now being levelled at counsel.Errors in closing address[48] Mr Salvaji contends that his trial counsel made a number of errors in hisclosing address which attracted the attention of the Judge in his summing-up andreflected prejudicially on his defence.Representative charges[49] In the course of his closing, Mr Keam addressed the topic of representativecharges. He referred to them as "charges where frankly the Crown doesn't actuallyknow what happened". He submitted, "if the Crown doesn't know what happened,then it's a bit rich for you to be expected to know".8 Hall v R, above n 5, at [74].9 At [74]–[75].[50] Judge Down directed the jury that representative charges are commonly usedin criminal trials. He commented, "[i]t does not carry with it the inherent doubt thatMr Keam, in his closing address, asked you to infer.", and clarified that the uncertaintyrelated to the specific dates on which those incidents were alleged to have occurred.The Judge stated:It would therefore be unfair to the complainant and the Crown's case to followMr Keam's imputation and say that representative charges are, by definition,uncertain and unreliable. That is simply not the case in law.Recorded telephone conversation[51] Mr Keam also suggested to the jury that the police had set up the telephonecall to Mr Salvaji because they considered they did not have enough evidence.Judge Down directed the jury to ignore that submission and not to speculate about themotivation of the police officer arranging the call. It was observed that neither a policeofficer's view of the evidence nor decisions made by police regarding theirinvestigation were matters relevant to the jury's task and that it was an impropersubmission for counsel to make.Episodes of the complainant bleeding[52] Mr Keam submitted that the complainant had conflated her evidence aboutbleeding after the first alleged incident of sexual violation with her evidence aboutwhen she experienced her first period. This topic had been the subject ofcross-examination. The complainant maintained they were two separate occasions.[53] Judge Down in his summing up noted that "despite the defence submission",the Crown case was that these were two separate incidents. While it remained a matterfor the jury to determine, it was noted that despite the defence submission the Crownhad invited the jury to draw a clear distinction between the two events. Mr Koyasubmitted that the Judge's direction would have left the jury with the impression thatMr Keam had been wrong to suggest that the complainant was confused or haddeliberately "fudged" the evidence about the two episodes of bleeding.Assessment of erroneous submissions[54] We accept that a trial judge's comments regarding the merits of counsels'submissions carry a collateral risk of conveying a view about the defence case.However, the jury were directed to take an objective and impartial approach to theirassessment of the evidence uninfluenced by prejudice or sympathy. A trial judge'sdirections are designed to ensure that a jury takes an analytical approach to itsdeliberations. The summing-up in the present case was no exception.[55] In this instance, the Judge's reproaches regarding counsel's criticism of therepresentative charges and the inferences to be drawn from the arranged telephone callwere well-founded. However, there is no reason to suppose the Judge's correctionswould have caused the jury to have strayed from a careful and dispassionate analysisof the evidence. The Judge's comments were entirely consistent with that requiredapproach.[56] In relation to whether there had been one or two episodes of bleeding, weconsider the Judge's observations were designed to assist the jury to understand therespective defence and Crown positions regarding that particular part of the evidence.The issue was left for the jury's determination. As an individual topic it was merelyan item of evidence that formed part of the jury's wider task of assessing the evidenceas a whole.[57] Overall, we do not consider there was anything remarkable about the Judge'scomments regarding aspects of Mr Keam's closing address or that gives rise toconcern. We do not consider the Judge's remarks undermined the defence case orprevented the jury from properly assessing the trial issues before it. We considerMr Salvaji's defence was clearly presented and that his counsel effectively highlightedthe weaknesses in the Crown's case in an endeavour to demonstrate that it was unableto satisfactorily prove the charges beyond reasonable doubt. Notwithstandingthe Judge's comments in relation to some of those submissions, we are satisfied thatno miscarriage arises from this aspect of the trial.1010 Ross v R [2017] NZCA 587 at [40]; and E (CA113/2009) (No 2) v R [2010] NZCA 280 at [28].Prior consistent statements[58] Both the complainant's friend and a cousin gave evidence of having receiveda letter from the complainant in 2014 and 2015, respectively, that disclosed sexualabuse. The Crown was able to rely on those communications as evidence of priorcomplaint. The letter and an email sent by the friend in response were produced asexhibits.[59] Mr Koya submitted that the letter should not have been admitted as a priorconsistent statement. He pointed out various statements in the letter that he submittedwere inconsistent with the complainant's trial evidence. These included suchstatements as "I do not know if I am a virgin", and "... he [tried] to have sex with meand everything". Other comments made by the complainant that Mr Koya highlightedas being inconsistent included "he tried to kiss me and touch me all the time","I [didn't] know what was happening to me or with me", "[h]e opened Porn when Iwas there one day and I literally screamed", and "I started to avoid and tried to get outof it".[60] Mr Koya argued that the evidence should have been excluded as irrelevant andthat it did not qualify for admission under the Evidence Act 2006.11 Mr Koya was alsocritical of the fact that the complainant's letter had been written some nine years afterthe alleged events and, in his submission, following the complainant having had theopportunity to conduct research and discuss sexual matters with others, including forexample the use of oil that she claimed was used during one of the incidents of rape.He submitted there was "nothing spontaneous" about the content of the letter.[61] We do not accept the challenge to the admissibility of this evidence.The complainant's letter to her friend and cousin responds to the claim of inventionthat was inherent in Mr Salvaji's defence that the sexual offending never occurred.12The consistency of prior statements, and therefore their admissibility, has to beassessed in the context of the case in which they are sought to be adduced. In thepresent case, the defence was one of denial. The probative value of the prior consistent11 Evidence Act, ss 7 and 35.12 Section 35(2).statements derives from the complainant having on earlier occasions disclosedMr Salvaji's sexual conduct toward her and the consistency of those complaints withher evidence.[62] Mr Salvaji may be able to point to some inconsistencies in the prior accounts,but that aspect does not render the evidence inadmissible. Insofar as there wereinconsistencies in the statements, they were available to Mr Salvaji to use in anendeavour to demonstrate that the complainant lacked veracity or was an unreliablewitness. No unfairness arises. Furthermore, the evolving nature of the complainant'saccount formed part of the defence. In particular, the complainant's discussions withothers and the responses elicited from those with whom she confided were materialparts of the evidential narrative upon which the defence relied and sought toemphasise.Directions regarding prior consistent statements[63] A further ground relied upon by Mr Salvaji was an alleged failure bythe trial Judge to properly direct the jury regarding its use of the complainant'sprevious statements. Mr Koya relied upon a passage from this Court's decision inW (CA362/2016) v R to the effect that it will often be necessary for the Judge to directthat a previous consistent statement is not additional evidence independent ofthe complainant nor corroborative of evidence given at trial.13 There will also oftenbe a need to warn the jury that repetition does not itself make something true becausean untruthful person might have repeated a lie. However, there is no absoluterequirement for such a direction and a failure to give such a "repetition direction" willnot necessarily be fatal.14[64] Mr Koya was critical of the trial Judge's directions. He submitted thatthe Judge omitted to advise the jury that the evidence of the complaint witnesses wasnot additional evidence independent of that provided by the complainant.He submitted the evidence of the fact the complainant had confided in her friend andcousin about the sexual abuse was not evidence that "the events did happen".13 W (CA362/2016) v R [2017] NZCA 259 at [61].14 At [61].In making that submission, Mr Koya referred to the following passage fromthe Judge's summing-up:In her evidence, the prosecutor asked [the complainant] about some earlieroccasions when she had complained about being sexually assaulted.You know that the defendant says that those sexual assaults never happenedand that, in effect, she is making it up. The law allows you to hear about theseearlier statements in order to assist you to assess whether indeed she has madeup the events. The earlier statements show consistency in her allegations andyou can also use them as evidence that the events happened. These, of course,are the statements that she made to friends, the first one, of course, to heroldest friend.[65] However, the Judge did not leave his directions there. He further directed:It is important to remember that, of itself, repetition does not necessarily makesomething true. An untruthful person might continuously repeat the same lie,and a mistaken person, believing themselves to be correct, might continuouslyrepeat the same error. So too, of course, might a truthful person repeat hercomplaints. It is a matter for you to decide whether the earlier statements thatshe made to friends and family assist you here. They are there to be consideredas evidence along with everything else.[66] We consider that the Judge's directions met the essential requirements ofthe "repetition" direction. The jury were left in no doubt that the complaint witnesses'evidence was entirely reliant on what the complainant had communicated to them and,in that sense, was not evidence derived from an independent source. We considerthe jury was adequately informed about the nature of this evidence and its limitations.Admissibility of recorded telephone conversation[67] In his pre-trial ruling, Judge Glubb held that because of the background to theway the phone call had been arranged by the police, the complainant was to beconsidered as having acted as an agent of the state.15 However, the Judge consideredthere had been no element of interrogation in the way the complainant had questionedMr Salvaji.16 She had not embarked on a process of cross-examination and theexchange between Mr Salvaji and the complainant was held to have unfolded as anatural discussion between the complainant and the person who she considered hadoffended against her. Because there was no unfairness in the way the telephone15 R v Salvaji [2019] NZDC 3219 at [17].16 At [21]–[25].conversation had been conducted, the evidence had not been improperly obtained andwas therefore admissible.17[68] Mr Salvaji's challenge to the admissibility of this evidence was based on twogrounds. The first can be quickly disposed of. Mr Koya submitted that the recordingwas unlawful because the police had failed to obtain a warrant under the Search andSurveillance Act 2012 to intercept the conversation. That submission, however,overlooks s 47 which sets out activities that do not require a warrant. A covert audiorecording of a voluntary oral communication between two or more persons that ismade with the consent of at least one of them is not required to be authorised bya warrant.18[69] The second ground was a submission that Judge Glubb had erred in holdingthat the answers provided by Mr Salvaji had not been "elicited" by the complainant.The focus of the submission was on how the complainant was said to have lied toMr Salvaji during the course of their conversation by representing that she had notdisclosed her allegations to anyone else. Mr Koya submitted that even if there hadbeen no interrogation or extensive cross-examination, the complainant had used her"lies" to manipulate and break down Mr Salvaji and had thereby "elicited" anadmission from him.[70] We do not consider the way the complainant participated in the conversationnor her misrepresentation regarding whether she had previously told anyone aboutMr Salvaji's offending rendered her conduct illegitimate. The essence of theprohibition on admissions being "elicited" from a defendant in such circumstances isto ensure there is not the implicit power imbalance in play that tends to cause a personto believe that they are required to answer the questions of a person in authority,commonly those of a police officer.[71] We accept the Crown's submission that Mr Salvaji did not understand himselfto be under any obligation to respond to the enquiries that were being made of him bythe complainant. She did not exploit or manipulate him in the way she sought to17 At [26].18 Search and Surveillance Act 2012, s 47(1)(b).discuss the topic of his past conduct towards her.19 Insofar as she misrepresented thefact that she had not disclosed her allegations to anyone else, we do not consider thatamounted to manipulation or would have contributed to eliciting a particular responsefrom Mr Salvaji.[72] Inherently there is an element of deception, but we do not considerJudge Glubb's observation that "[t]he flow is that of an abused person and an allegedperpetrator, it is natural, and it is conversational." is other than an accurate descriptionof the exchange that took place between the two participants.20 We agree withthe Judge's conclusion that the evidence was not unfairly obtained and was properlyadmitted at Mr Salvaji's trial.Sentence appeal[73] Mr Salvaji was sentenced to 14 years' imprisonment accompanied by aminimum non-parole period of seven years.21 He appeals the imposition of theminimum period of imprisonment on the basis that it was manifestly excessive.In imposing that minimum period, Judge Down addressed himself to s 86 ofthe Sentencing Act 2002. He determined that the parole period that would ordinarilyapply would be insufficient to adequately denounce Mr Salvaji's conduct and meetthe sentencing purposes of accountability and deterrence.22[74] Mr Salvaji relies on two grounds in support of his challenge to the minimumperiod of imprisonment. The first is based upon a recently published article thatappeared on the Stuff news site that told of how the complainant participated in therecorded telephone conversation with Mr Salvaji. The report focusses on what isdescribed as a "confession" that the complainant obtained. Mr Salvaji's complaint isthat he did not make a confession and that the report did not include various aspectsof the evidence that was reviewed at trial.19 Shaw v R [2018] NZCA 588, [2019] 2 NZLR 763 at [50].20 R v Salvaji, above n 15, at [23].21 R v Salvaji, above n 1, at [52]–[53].22 At [35]–[36].[75] Mr Koya submitted that the article will cause great harm to Mr Salvaji becausehis reputation will suffer in the Telugu community as a result of being described as aconfessed rapist. He submitted that because of this publicity the sentence should bereduced. There is, however, no nexus between the published article and thecorrectness of the sentence imposed on Mr Salvaji. The media report is irrelevant tothe question of the appropriateness of the minimum period of imprisonment or itslength. We decline leave to admit this further evidence as the material cannot bear onthe sentence appeal.[76] The second ground relied upon by Mr Salvaji is a submission that the Judgeignored the consequences to Mr Salvaji's family from him being sentenced to a longterm of imprisonment. At his sentencing, letters were proffered from his familyrecording the assistance Mr Salvaji provided to them and the difficulties they willexperience as a result of his absence. A particular focus was the effect on Mr Salvaji'sfather and how Mr Salvaji would no longer be able to assist his parents to attendmedical appointments by driving them to the doctor, purchasing medicine on theirbehalf, and supervising their taking of that medication. They describe how heavilydependent they are on him since moving to New Zealand because of their old age.Mr Koya submitted these personal circumstances ought to have been taken intoaccount by the sentencing Judge in assessing the term of the minimum period ofimprisonment.[77] The Judge did not specifically refer to the consequential effects of the lengthof Mr Salvaji's incarceration on his family. However, despite Mr Salvaji beingdescribed as "entirely unremorseful",23 the Judge was prepared to take into accounthis otherwise unblemished record and the high regard with which he was held in hiscommunity. Notwithstanding the "shameful aspects" of his past, the Judgeacknowledged that Mr Salvaji had been a worthy contributor to his community andhad assisted and cared for others.24 As a result, a discount of two years was applied.2523 At [40].24 At [42].25 At [43].[78] Mr Salvaji sought leave to file some further evidence relating to his parents'medical situation. We do not consider it materially adds to the body of informationthat was before the sentencing Court. However, we admit it on the basis that it doesprovide some "updating" information, particularly about Mr Salvaji's father.[79] Despite the admission of that evidence, we are not persuaded that the concernsexpressed by Mr Koya regarding the effect of the minimum period of imprisonmenton Mr Salvaji's family renders that term inappropriate or excessive. We acceptthe Crown's submission that the two-year reduction in recognition of Mr Salvaji'sotherwise good record and character was generous and that it adequately reflected notonly his contribution to his community but the role he has played in support of hisfamily, both as a son and father. The Crown has drawn to our attention statements bythis Court that where offending of this type is serious and premeditated, and where itoccurs over a lengthy period, the impact of the sentence on the innocent family ofthe offender will have little effect on its appropriateness.26[80] In T (CA239/2018) v R, an Afghani immigrant convicted of multiple chargesof sexual offending against a close relative was sentenced to 15 years' imprisonmentwith a seven and a half year minimum period of imprisonment.27 His otherwise goodcharacter that reflected his commitment to his family and community, his familycircumstances that included a seriously ill wife and a dependant mother living withthe family who was in deteriorating health, and the absence of any extended familysupport resulted in an 18-month reduction.28 In declining to afford any greaterdiscount, this Court noted that the reality of the family's predicament was such that itwould not be alleviated by applying any further discount.29 The situation in the presentcase is similar.[81] It was not contended by Mr Koya that the minimum period of imprisonmentwas otherwise inappropriate. Having rejected the grounds put forward as supportingany greater discount for Mr Salvaji's personal and family circumstances, we do notconsider the imposition of a 50 per cent minimum period of imprisonment for this type26 McGregor v R [2015] NZCA 565 at [46].27 T (CA239/2018) v R [2018] NZCA 448.28 At [11].29 At [21].of offending to be objectionable, involving as it does a sentence imposed for repeatedsexual offending against a child over a prolonged period.30Result[82] The application to adduce evidence regarding the Stuff article on the sentenceappeal is declined. However, we grant leave to admit the updated evidence regardingMr Salvaji's father's health.[83] The appeal against conviction is dismissed.[84] The appeal against sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent30 R v AM (CA27/2009) [2010] NZCA 114, [2010] 2 NZLR 750 at [156].