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R v Ogunseye QCA 192
SUPREME COURT OF QUEENSLAND
R v Ogunseye  QCA 192
OGUNSEYE, Olajide Olusesan
CA No 263 of 2020
DC No 2708 of 2019
Court of Appeal
Appeal against Conviction
District Court at Brisbane – Date of Conviction: 26 October 2020 (Jarro DCJ)
7 September 2021
26 July 2021
Sofronoff P and Morrison and Mullins JJA
APPEAL AND NEW TRIAL – NEW TRIAL – IN GENERAL AND PARTICULAR GROUNDS – IN GENERAL – MISCARRIAGE OF JUSTICE – CIRCUMSTANCES INVOLVING MISCARRIAGE – MISDIRECTION – GENERALLY – where the appellant was convicted on one count of rape – where at trial, the prosecution led evidence of pre-text telephone conversations where the appellant said “sorry” to the complainant, amongst other things, which were capable of being regarded as tacit admissions – where the appellant was of Nigerian birth and of Yoruba ethnicity – where defence counsel led expert evidence by a linguistics professor who was also of Yoruba ethnicity and gave evidence that the appellant was not admitting guilt by apologising but rather was “attempting to pacify a situation” – where the prosecution attacked the expert witness’s credit based on previous disciplinary proceedings against them – where the trial judge gave directions to the jury about the prosecution’s attack on the expert’s credit in accordance with Benchbook Direction 43 Bad Character/Previous Convictions – where the appellant appeals the conviction on the ground that the direction was wrong – whether there was a misdirection which gave rise to a miscarriage of justice denying the appellant a fair chance of acquittal
M J Copley QC for the appellant
J D Finch for the respondent
Fisher Dore Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent
- THE COURT: A jury found the appellant guilty of one count of rape. The complainant was a woman in her early 20’s. The appellant’s wife employed her as a beauty therapist at her beauty salon but she also worked as a receptionist for the appellant who was a medical practitioner.
- The complainant agreed to perform a facial service upon the appellant at the salon on 4 October 2018. The appellant suggested that, because the complainant had told him that she had been unwell and had suffered period pain recently, he should perform a pap smear procedure upon her at the salon after she had given him the facial treatment. As arranged, the complainant performed the facial treatment and the appellant then said that he would now perform a pap smear. The complainant said that since they had discussed the matter she had booked an appointment at his surgery for that purpose for the following Monday. The appellant said that he had brought his equipment. The complainant then removed her trousers and underwear and lay on the treatment bed in the beauty salon.
- The complainant had previously undergone pap smear treatments and knew what was involved. The appellant performed the procedure and there is no suggestion that he did anything improper while doing so. However, after he had finished his work, he told the complainant that she had looked good at a Christmas dinner, which had taken place a week or so earlier, although he thought that her stomach was a bit big and that she could do with a “fat cavitation”. He then said, “I think I’ve seen a rash…can I have another look?” and she agreed. The complainant had not previously noticed any rash nor had she suffered any kind of irritation. She had not said anything to the appellant to suggest that she was suffering from any condition of that kind. She was still lying on her back and her legs were still positioned as they had been when the pap smear had been taken.
- In evidence the complainant said that she felt the appellant touch her around her clitoris and his fingers then began to stroke the sides of her vaginal area. He said, “does that hurt?” a couple of times. She said it didn’t. He then wiggled his finger on her clitoris more than once and said, “does this hurt?”. Again, she said, “No”. The appellant then moved a finger on the inner part of her vaginal lips. For the purposes of this appeal, it is not necessary to consider her evidence in detail. If accepted her evidence established the commission of the offence.
- Some days after 4 October, the complainant had several telephone conversations with the appellant. Two of these conversations were recorded. Although the appellant did not expressly admit committing the offence, he said words that were capable of being regarded as tacit admissions. The following is an example:
“A: You know I said, I’ve told you, I’m, I, I don’t know how to explain it to you again, I’m sorry. It was never my intention.
C: Then why did it happen? You say that we’re—
A: We are.
A: We are—
C: What would—
A: We are.
C: You do—
A: We are. Sometime [INDISTINCT] seriously, I, I, I think you as my family, and that’s why I say I’m sorry. That’s why. I know how much you hurt there. I do. I do. And it’s saddening my heart. And that why I’m say I’m sorry. You are like a family to me, and I’m not joking about that. I would go to [INDISTINCT] I, if you, if you call me to [INDISTINCT] that this is happening to you, I go to any extent to do what I can do.
C: But why did you do it to me?
A: That’s what I’m telling you, I’m sorry. It was never intended, never an intention, it was never, it was a mistake. And I’m sorry. And that’s what I’m telling you, and I hope you can open my heart and see that it’s not like, okay, I plan to [INDISTINCT] you, it’s not, it was never intended, it was a mistake and I’m sorry. I, I just hope you can really understand and forgive. I know you’ve been hurt, I’m sorry about it. I know we’re close, and I know you are even more closer to me than to [my wife] because there’s some things you’ve spoken to me that you can’t tell [my wife]. I know, I am [INDISTINCT] hurts me. And I just wish [INDISTINCT], it, [INDISTINCT] your heart, forgive me. That’s all I’m asking fr-, from you.”
- The prosecution case ultimately rested upon three categories of evidence. First, there was the direct evidence of the complainant, whose credit was supported by evidence of preliminary complaint. Second, there was expert evidence about how a proper pap smear procedure ought be conducted. This was not relevant to the appeal. Third, there was the series of pre-textual phone calls containing what were said to be tacit admissions.
- The defence case attacked the complainant’s evidence. It was said that she had simply misunderstood what the appellant was doing during the procedure and, in addition, evidence was led that the complainant had a financial incentive to lie. The appellant did not give evidence but evidence was led from witnesses as to his good character. With respect to the pre-textual phone calls, expert evidence was led to challenge the proposition that they contained implicit admissions.
- The appellant is of Nigerian birth and, within that country, he was born to parents of Yoruba ethnicity. The defence led evidence from Dr James Oladejo, who is a professor of linguistics with expertise in sociolinguistics, a field which includes the study of how words are used differently in different cultures. He himself is of Yoruba ethnicity and he is fluent in both English and in the Yoruba language. His evidence was led in order to explain that, while a person from an Anglo-Celtic culture could interpret the appellant’s apologies to the complainant as a tacit acceptance of guilt, that was not so, or not necessarily so, in Yoruba culture. In that cultural domain, according to Dr Oladejo’s evidence, there is no equivalent to the English word “sorry” as implying an acceptance of wrongdoing. The following evidence encapsulates the thrust of his point:
“The nearest word in Yoruba language that one could say might be close enough to English “sorry” is “pela”. But “pela” in Yoruba does not equate to “sorry” in English. Let me give you a very simple example. I mean, as a teacher, I’ve had occasions when I’ve dropped the whiteboard marker or whiteboard cleaning. Any my Nigerian students will say “sorry”. They haven’t caused the problem. They were not the one who made me drop it. But that is similar to saying in English “be careful”, but the Nigerian speaker would not say “be careful” to the teacher, because it’s culturally unacceptable. So they will say “sorry”. And I’ll turn around and say, “Well, you didn’t cause the problem. Why are you sorry?” So basically what we’ve got here is there is no equivalent in Yoruba language to the English word “sorry”. What is closest to that meaning is “pele”, but “pele” in Yoruba actually means “I empathise with you”. I – you know “I feel for you”, “be careful” or “I am”, you know, “I know you are – I know – I feel your pain,” that’s all; that’s what it means, you acknowledge.”
- Defence counsel submitted that, on the basis of Dr Oladejo’s evidence, the jury would accept that the appellant was not admitting guilt by apologising but, rather, that he was “attempting to pacify a situation”. The prosecutor challenged that argument in three ways. First, he submitted that Dr Oladejo’s evidence was of little weight because it consisted of an opinion that had been given about the meaning of various statements, but Dr Oladejo did not have access to, or consider, the great deal of significant contextual evidence before the jury, such as all of the complainant’s evidence, the evidence of preliminary compliant and evidence of other conversations. Second, the prosecutor submitted that the theoretical basis for the evidence about how the word “sorry” is used by Yoruba people was deficient in various ways. Third, the prosecutor attacked Dr Oladejo’s credit directly upon the basis of evidence about previous disciplinary proceedings against him.
- If the jury accepted the evidence of Dr Oladejo, or if that evidence raised a doubt about the significance of the evidence of phone calls, then the defence would have eliminated an important part of the prosecution case. What would have been left would have been the complainant’s evidence, supported by evidence of preliminary complaint, the expert medical evidence, which did not loom large, and the character witnesses called by the defence.
- The learned trial judge told the jury, in the usual form, that if they accepted the defence evidence and thought that it provided an answer to the prosecution case, they had to acquit. If they thought that the defence evidence was not convincing, but that it left them in a state of reasonable doubt as to guilt, they should acquit. Finally, if they rejected the defence evidence then they nevertheless had to consider the prosecution case on its merits in order to decide whether the Crown had proved guilt beyond a reasonable doubt.
- In dealing with the expert evidence his Honour did not repeat these directions nor did he have to. His Honour began his instructions by reminding the jury that two experts had been called at the trial, one by the prosecution and one by the defence. His Honour then gave some orthodox directions about how the jury should approach that evidence, including that it was a matter for them to decide whether they accept the evidence and the weight that they might give it.
- His Honour then gave directions about the attack that had been made upon Dr Oladejo’s credit based upon the previous disciplinary proceedings against him. His Honour said:
“Dealing specifically with Dr Oladejo’s evidence, you will recall evidence has been given that he was reprimanded in 2016 by a state tribunal in Western Australia in his role as a real estate agent. That is something you can take into account when considering his credibility and the weight to be given to his evidence. So too that he retired in 2008 as a professor in linguistics. The fact that someone has previous history concerning unprofessional conduct or otherwise does not necessarily mean his evidence has to be rejected out of hand.
It is a matter for you what weight you give to the fact that he has been previously reprimanded. In deciding that, you look at the rest of the evidence, including any evidence that supports his expert evidence independently, and weigh his evidence and the fact that he has a past history of having been reprimanded. If, after you have done that, you are satisfied that Dr Oladejo is a truthful and accurate witness, you can act on his evidence notwithstanding that he has been previously reprimanded by a state tribunal in 2016.”
- It will immediately be noticed that the substance of this direction has been taken almost verbatim from the first four paragraphs of Benchbook Direction 43, which states the following:
“Evidence has been given that [X], who gave evidence for the prosecution (or defendant), has previous convictions. That is something you can take into account when considering his credibility and the weight to be given to his evidence.
The fact that someone has previous convictions does not necessarily mean his evidence has to be rejected out of hand. It is a matter for you what weight you give to the fact that he has been previously convicted.
In deciding that, you look at the rest of the evidence, including any evidence that supports his evidence independently, and weigh his evidence and the fact that he has convictions in that context.
If after you have done that, you are satisfied that he is a truthful and accurate witness you can act on his evidence notwithstanding that he has previous convictions.”
- Mr Copley QC, who appeared for the appellant, submitted that the last sentence of the direction that the jury was given in this trial was a wrong statement of law and that the direction occasioned the appellant a miscarriage of justice.
- The Benchbook model direction is correct insofar as the first three paragraphs are concerned and in so far as they are said to apply to prosecution witness and to defence witnesses. However, the last paragraph quoted above cannot, without more, apply to a defence witness. Expert evidence called by the defence is not exhausted in its effect just because the jury is not prepared to conclude that it is truthful and accurate. The fourth paragraph in the Benchbook direction, and the contentious sentence in his Honour’s summing up, contradict the true position which is that, even if the jury finds the expert evidence called by the defence to be doubtful, if that evidence nevertheless raises a reasonable doubt, then the evidence remains a factor in the jury’s consideration – although its ultimate significance and weight as a single piece of evidence is a matter for the jury to determine in the context of all of the other evidence.
- It follows that there has been a misdirection. No redirection was sought at the trial and so the appellant must demonstrate that the misdirection gave rise to a miscarriage of justice. Relevantly, there must have been the loss of a fair chance of acquittal that was otherwise open to the appellant.
- As has been explained, the prosecution case depended principally upon the complainant’s credit and upon the incriminating phone calls. The defence case met the complainant’s evidence by evidence about motive to lie and by the character evidence. It met the evidence of the apparently incriminating phone calls by means of the character evidence but the principle challenge was constituted by the explanation offered by Dr Oladejo. If the jury accepted that explanation, or if Dr Oladejo’s evidence raised a reasonable doubt in the mind of the jury about what the appellant meant, then the Crown case would have been weakened significantly. The power of the proffered explanation as a pathway to acquittal was significantly reduced by the jury being told, in direct terms, that they could use the evidence if they accepted it and, implicitly, not otherwise.
- Mr Finch, who appeared for the respondent in the appeal, submitted that any possible disadvantage caused by the misdirection was cured by a subsequent direction in that part of the summing up in which his Honour was summarising the defence position:
“You would accept the evidence of Dr Oladejo about the Yorubian culture, but even if you did not, that does not mean that Dr Ogunseye, in apologising, was expressly and – expressing a knowledge of guilt for raping [the complainant].”
- That submission cannot be accepted. The reference to the argument that, even by apologising, the appellant was not admitting guilt, was a reference to defence counsel’s argument that, taken at face value, the appellant’s apology, regarded as such, was not referable to his being guilty of rape because the complainant had not accused him of raping her. The direction was about the expert evidence. For these reasons, the appeal must be allowed, the verdict must be set aside and there must be a retrial.
- Published Case Name:
R v Ogunseye
- Shortened Case Name:
R v Ogunseye
 QCA 192
Sofronoff P, Morrison JA, Mullins JA
07 Sep 2021
|Event||Citation or File||Date||Notes|
|Primary Judgment||DC2708/19 (No citation)||26 Oct 2020||Date of conviction, after trial before Jarro DCJ and jury, of one count of rape. Relevantly, defence led evidence of expert in sociolinguistics to challenge proposition that telephone conversations led by Crown contained tacit admissions.|
|Primary Judgment|| QDCSR 1184||27 Oct 2020||Date of sentence; sentenced to 20 months' imprisonment suspended after 8 months for 2 years (Jarro DCJ).|
|Appeal Determined (QCA)|| QCA 192||07 Sep 2021||Appeal against conviction allowed, conviction set aside, retrial ordered; trial judge erred in directing jury that they could act on defence expert's evidence, notwithstanding previous disciplinary proceedings, if satisfied that he was a truthful and accurate witness; even if jury finds such evidence doubtful, if that evidence raises a reasonable doubt, it remains a factor in the jury's consideration; power of pathway to acquittal significantly reduced: Sofronoff P, Morrison JA, Mullins JA.|