R v Ogunseye[2024] QCA 152

SUPREME COURT OF QUEENSLAND

1. [1]
   DALTON JA:  I agree with the order proposed by Crowley J and with his reasons.
2. [2]
   HINDMAN J:  I agree with the reasons of Crowley J and with the order proposed by his Honour.
3. [3]
   CROWLEY J:  The appellant was tried by jury in respect of a single count of rape.  The jury found him guilty.  He now appeals his conviction.
4. [4]
   The sole ground of appeal contained in the original notice of appeal was that the verdict of the jury should be set aside as it was unreasonable and could not be supported having regard to the evidence.  At the hearing of the appeal the appellant formally abandoned that ground and was given leave to instead substitute a ground in these terms:

“evidence capable of being viewed by the jury as admissions by conduct was led by the Crown but the jury was not given a warning not to misuse that evidence either in terms of Edwards v The Queen (1993) 178 CLR 193 or in a more abbreviated form, and as a result there was a miscarriage of justice.”

Facts, issues and contentions at trial

5. [5]
   The appellant was a medical doctor working as a general practitioner in Hervey Bay. The complainant was a woman in her early 20’s, working as a receptionist for the appellant and also working as a beautician at a beauty salon operated by the appellant’s wife.  The complainant had worked for the appellant and his wife for about four years at the time of the offence.
6. [6]
   On the evening of Thursday, 4 October 2018, the appellant attended the salon to perform injections on some of his Botox clients.  After he finished, the complainant performed a facial treatment for him.  That was a regular procedure that he undertook at the salon every fortnight or so.
7. [7]
   After the treatment, the appellant offered to perform a pap smear procedure upon the complainant.  The complainant told him that she did not want to do the procedure at that time.  Although earlier in the week she had made a tentative arrangement with the appellant to have it done at the salon one day, she had since booked an appointment to see the appellant at his surgery the following Monday.  The appellant then referred to his medical bag and asked, “What did I bring all this for?”.  The complainant then agreed to have the pap smear done.  She went to the toilet and then returned to the treatment room, removed her pants and underwear, and using a towel, hopped onto the bed in the salon.
8. [8]
   The complainant had previously had a pap smear done by the appellant and knew what was involved.  The appellant performed the procedure.  There was no suggestion that he did anything improper while doing so.
9. [9]
   After the pap smear was done, the appellant told the complainant, “I think I’ve seen some rashes around your vagina.  Can I have another look?”.  The complainant had not noticed any such rash but agreed to the further examination.
10. [10]
    The complainant gave evidence that during this second examination she felt the appellant use his fingers to poke around her vagina, push or poke her clitoris about four or five times, and stroke down her vaginal walls inside her vaginal lips.  She said that she felt him insert what she thought was two fingers into her vagina.
11. [11]
    The Crown case at trial was that during the second examination the appellant digitally penetrated the complainant’s vagina under the pretence of checking a rash on her vagina.  Whilst the complainant had agreed to the second examination, the Crown case was that she had not freely and voluntarily consented to the act of penetration as her consent had been obtained by the appellant’s fraudulent or false representation that he needed to examine a rash.
12. [12]
    There was no real dispute at trial that the appellant had engaged in the act of digital penetration as alleged by the Crown.  It was accepted that if consent to the act was obtained by fraud, the conduct he had engaged in would amount to rape.  The appellant’s case was that there was no false or fraudulent representation and the act was therapeutic in nature and done for a proper medical purpose.

The admissions made by the appellant

13. [13]
    Part of the Crown case at trial concerned statements made by the appellant to the complainant on several occasions after the alleged incident of rape.
14. [14]
    The first occasion was on 4 October, immediately after the act of penetration had finished, whilst the complainant was still on the bed. The complainant gave evidence that as she lay there the appellant, “…sort of reached his hand over and just sort of touched my forehead and then he leaned in.”  She continued:

“It looked like he was leaning in to kiss me so I just sort of moved out of the way and sat up. At that point, he stopped. I - he sort of stopped and stood back and he’s like, I’m sorry. And I just stood there with the towel over me and tried to put my clothes back on.”

15. [15]
    In cross-examination, the complainant agreed that when she previously gave evidence in the Magistrates Court about these events she had described the appellant’s head being no closer than 30 centimetres to her face, with his head tilted to one side.  She denied suggestions put to her that this incident did not happen and that at all times the appellant was at the end of the bed near her feet and never got that close to her.  She was not directly cross-examined about her evidence that the appellant had said, “I’m sorry.”
16. [16]
    The second occasion was a few days later.  By this time the complainant had told several people about what had happened.  The complainant gave evidence that the day after the incident, Friday, 5 October, she told a colleague at work that she was planning on moving to Brisbane.  She said that when her colleague asked her why, she got a bit emotional and ended up telling them what had happened with the appellant.  She said that during that day at work, the appellant kept calling the salon, wanting to speak to her, but she could not recall if she did speak to him then.  She did however recall speaking to him on the telephone on Tuesday, 9 October, while she was at work at the salon.  She recorded the conversation, and a copy of the recording was tendered by the Crown and played to the jury.  During the conversation the appellant asked the complainant why she wanted to go to Brisbane, to which she replied, “From what happened on Thursday night.”  The appellant then said that they needed to talk adding, “Frankly, not a, not a joking matter now, okay…I know you love your job so much, and we don’t want, anything to happen…” The appellant suggested the complainant come to his medical practice later that day at 4:30 pm, “…to have a heart to heart.”  The complainant agreed to meet.
17. [17]
    The complainant was not cross-examined about this conversation.
18. [18]
    The third occasion was during the arranged meeting later in the afternoon on 9 October.  The complainant gave evidence that before speaking to the appellant she had pretended that she needed to go to the toilet and had left the room.  Whilst in the toilet she had placed her mobile phone in her bra and had started an audio recording on it so she could record the conversation she was about to have with the appellant.  She said that when she returned to the room the appellant repeatedly asked her where her mobile phone was and whether she was recording the conversation.  She eventually admitted that she was and removed her concealed phone.  At the appellant’s request, she deleted the recording that she had made.
19. [19]
    The complainant gave evidence that she then had the following conversation with the appellant:

“He was saying that, ‘That really hurt me,’ and I said I did it for my safety. He kept saying he’s sorry, he can’t explain why he did it or why it happened, he was just so sorry. Asking me to stay. I - like, how am I going to practically afford living in Brisbane? I said ‘That’s my issue.’ He did try and touch me on the leg, and I just sort of stepped back and said ‘No. Don’t touch me’. I think that’s about everything from that conversation.”

20. [20]
    The complainant was not directly cross-examined about this conversation.
21. [21]
    The fourth and final occasion on which the appellant made apparent admissions about his conduct was during a subsequent conversation she had with the appellant at his surgery on 17 October 2018.  That conversation was recorded.  A copy of the recording was tendered by the Crown and played to the jury.  During that conversation:

1. a.
   The complainant told the appellant, “It’s just fucked with me…‘Cause of what you did, it’s, it, I put my trust in you to do a professional…pap smear”;

1. b.
   The appellant replied, “Don’t go back to this. Are you recording me again?” The complainant denied that she was recording the appellant;

1. c.
   The appellant then said, “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.”  The complainant asked, “Then why did it happen? You say that we’re family…”;

1. d.
   The following exchange then took place:

“Appellant: We are. Sometime [INDISTINCT] seriously I, I, I think you as my family, and that's why I'm 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.

Complainant: But why did you do it to me?

Appellant: 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 just wish [INDISTINCT], it, [INDISTINCT] your heart, forgive me. That's all I'm asking fr-from you.

Complainant: I don't know if I can ‘cause this is, I can't sleep, I've been having nightmares.

Appellant: I'm sorry. If you, if you, maybe if you know that I do-, I don't mi-, it's not like [INDISTINCT] do to you. Maybe that will give you bit of peace of mind because I [INDISTINCT] why you [INDISTINCT] my intention. And I still care for you and respect you like I used to be, not [INDISTINCT]. Seriously, I mean it's difficult [INDISTINCT] now, but [INDISTINCT] you want me to go any extent [INDISTINCT] I still respect you so much. You're still like a family to me, I know that, you know that, [INDISTINCT] that is a yes, that's, is a mistake, I'm sorry. Fully, fully sorry. And I'm seriously [the complainant], you are very good girl, a very hard worker. [INDISTINCT]. Sometimes mistakes happen.

Complainant: This was a massive mistake, though.

Appellant: It is.”;

1. e.
   The appellant then told the complainant that he did not want to hurt her, to which the complainant said, “It’s too late.”  The conversation then continued:

“Appellant: It's not too late. It's never too late. It's not too late. It's not too late. This is between me and you, it's not too late. If I could, if you could just put it at the back of your mind that it's not I mean to hurt you, I never meant to hurt you. I telling you a, you a, you are like a, a [INDISTINCT], I, I wouldn't want to do that. [INDISTINCT] I'm sorry. And it's not gonna go more than that, it's between me and you, and that will never happen again. And nobody will ever know about it. You've spoken to your bro-, your [INDISTINCT] mum, that's okay, but that is between me and you. I'm not gonna look at you differently, I'm not gonna look at you like any other thing because I know you are not that, you a good girl. A very good one. [INDISTINCT] asking for is, [INDISTINCT] it's saddening when you say you are scared of me, because I'm not gonna hurt you, you know that. You [INDISTINCT]. I-, it—

Complainant: But you did.

Appellant: Just, well, I'm sorry about that. It doesn't mean that's what I'm gonna do. I know, I know you, I know you [INDISTINCT] going through your brain, you've thought about [INDISTINCT], you're crying, you've done everything, but I'm say you not like that. And you and I know that you're not like that. Just, I just pray that things could be right, that's all I pray for. And believe you me [the complainant], I, I, I [INDISTINCT], I forever will not look at you differently. No. I just want you to know that. I know I'm ask you to trust me, it's gonna be asking for too much but I just want you to know deep down in your heart, I don't mean to hurt you. You are a family to me. And it sadden me that you're gonna be going because of, it sadden me a lot. And I know how much you love [INDISTINCT] but deep down there I know you love to work here…”;

1. f.
   The complainant then explained that she was going to Brisbane but that she had not wanted to as she had a stable job and a place where she worked, to which the appellant interjected, “…Nothing has changed about your stable job…” After the complainant then responded, “Maybe for you, but for me everything has changed. Absolutely everything”;

1. g.
   In a series of lengthy statements that then followed, the appellant variously said:

“Appellant: …I know you do love [INDISTINCT], you'd love to stay. And that's what it is [INDISTINCT], and that's why I'm begging you not to make that decision. That's why I'm begging you. And I'm promising you it will never ever [INDISTINCT] core of my bone. To the core of my bone I regret [INDISTINCT]. Because I never set out to do that. It sad-, it sadden my heart…I'm in front of you, begging you, made a mistake, I never planned to. I love you like a child, and I love you like a sister. And you are a family to me because there are many things you have done, and [INDISTINCT] I cherish that. And I don't want this single mistake to mess up our life. Please. Please…

…I know it might be difficult but deep down in your heart, if you could forgive, I will always be grateful to you. ‘Cause it's painful to me also because even just [INDISTINCT] you are not, you are like a family to me. And that's what is hurting me most. And it's more sad, it's sad in my heart that ah when I called you to talk to you, you were recording [INDISTINCT]…And I'm telling you, I respect you so much, I trust you so much, I [INDISTINCT] so much. Yes, that was a mistake, which will never ever, ever, ever happen again. That's a promise. I want you to enjoy and stay where you love. It's not like I'm telling, every-, everybody knows about [INDISTINCT] and maybe your mum or your, whoever you've told. [INDISTINCT]. Nobody's going to ask you, nobody's gonna ask me what is happening, I'm not gonna tell anybody what has happened. And I just want this to be a thing we can push behind us. It's difficult. It's very difficult, but it's possible.”;

1. h.
   When the complainant interrupted at one point and said, “It’s not my fault”, the appellant responded with a further series of lengthy statements, in which he said:

“Appellant: It's not, I agree. And that's why, why do you have to be punished for it? That's my [INDISTINCT] that's what I'm asking. Why do you want to be punished for it? It's not your fault. It's not my intention. It happened. But why do you have to be punished for it?… I know you're hurting. You are hurting. I'm sorry to be the source of that pain. You know it's not me, you know I'm not like that, you know me for almost three, four years now. I'm not, I'm not that bad. I'm not. It was a mistake and I'm sorry that has ever happened. And it will never ever, ever again. The only thing I'm asking for is for you to forgive. That's all.…

It was not an intention, it was a mistake. That what I'm telling you. It was a mistake and I wish you could believe that, and accept that.…

Please forgive. And I'm promising you today, between both of us now, I will never ever hurt you again. I never planned to hurt you in the first instance, it will never happen again…

And I'm sorry with the deepest of my heart, it was never intention a-, I never would hurt you, I would never, ever, ever, I would go to any extent to protect you. Because you are a family to me. It's not everybody [INDISTINCT] family, but in life you meet people that touches your heart more than anything, and you're one of them [INDISTINCT]. And that's why I know you say you wanna go, but believe in me, [the complainant], it's never too late. It's not. Because I'm telling you, whatever happen is a mistake, [INDISTINCT] day of light for me. Never, never, I will never talk about it to anybody. It's gonna be between us, I'm sorry, it will never happen again.…

And I'm telling you categorically now, whatever happened was not meant to happen. It was a mistake and I'm very, very, very, very sorry. Deep down in my heart, I'm very sorry. Please, [the complainant], forgive me, and don't leave your job.”

22. [22]
    The complainant was not directly cross-examined about this conversation.
23. [23]
    The Crown relied upon the various statements made by the appellant to the complainant on each of the first, third and fourth occasions described above as admissions made by him in respect of the alleged rape of the complainant.
24. [24]
    The appellant did not dispute that he had spoken to the complainant on each of the four occasions.  There was no issue that he was the person speaking to the complainant in the recorded conversations.  Further, he did not challenge the complainant’s evidence about the unrecorded statements she said he had made, including on the occasion he had asked her to delete the recording she had made on her mobile phone.  The extent of the cross-examination of the complainant about the various statements made by the appellant was to confirm that the appellant had been apologetic in the conversations he had with her and that he had repeatedly apologised to her.
25. [25]
    The appellant’s case was that although he had apologised to the complainant several times, the jury could not be satisfied that what he had said on any occasion amounted to an admission, because it was not clear exactly what he was referring to when he apologised and, in any event, the Crown could not exclude as a reasonable possibility that he never intended to make an admission about the act with which he was charged when he apologised or said sorry to the complainant.
26. [26]
    On the last point, the appellant called evidence at trial from Mr Adakunle Konoya, a Nigerian academic and community leader, who spoke about the concept of “Omoluwabi” observed by the Yoruba people of Nigeria, such as the appellant, and the use of the word “pẹ̀lẹ́” by Nigerian people.  He described Omoluwabi as a cultural and philosophical way of life, whereby, amongst other things, all Yoruba people were expected to be of good character and morality and to be truthful, hardworking and respectful.  He said pẹ̀lẹ́ was a broadly used word with no direct English language translation.  Although he agreed that the closest English word was “sorry”, he said it was not an expression used to indicate an acceptance of responsibility.  Rather, it was used to show empathy towards another.  Two character witnesses who knew the appellant also gave evidence to similar effect about the word pẹ̀lẹ́.
27. [27]
    Before the end of the Crown case, the trial judge discussed with counsel some of the proposed directions that might be given to the jury, including directions about the evidence of the statements made by the appellant to the complainant on each of the first, third and fourth occasions, which his Honour referred to as “statements against interest.”  In the course of those discussions, senior counsel who appeared for the appellant at trial submitted:

“The critical question for the jury is precisely what it is that he’s apologising for, because I note that the complainant never articulated to him what it was that she said he’d done.”

28. [28]
    Thereafter, the trial judge and counsel discussed what modifications might be made to the “standard direction”, which I assume from the exchange that then followed was a reference to the suggested directions set out in the Benchbook on a defendant’s out of court admissions.^[1]  The appellant’s counsel endorsed the trial judge’s suggestion that the standard direction would need to be modified to ensure that the jury were instructed that, amongst other things, they would need to be satisfied that any statement made by the defendant was a statement made in relation to the act relied on as constituting the offence and not some other conduct.

Addresses by counsel and the trial judge’s summing-up

29. [29]
    In his closing address, senior counsel for the appellant developed an argument that there was a reasonable possibility that the complainant’s allegation, and the subsequent charge of rape, were born out of a misunderstanding on the part of the complainant about what had happened during the second examination conducted by the appellant, which was coloured by her erroneous perception that the appellant had leaned in to kiss her at the conclusion of the procedure.  He said to the jury:

“My submission to you in the end is that there is a risk here, a not insignificant one, that this whole thing is just a misunderstanding.  Can we get to a point where we acknowledge that [the complainant] is upset about something that happened during the course of the events of that evening, but at the same time acknowledge the reality that the evidence just falls short of proving rape beyond reasonable doubt.  And so in considering those or that possibility, the main issues for you are well, what actually happened?  And there’s not really a whole lot of doubt about what happened.  It’s not a case where we’ve got he-said, she-said; there’s really not a lot of dispute about what occurred.

…this next question relates to what I’ve just mentioned, and that’s the issue of what the prosecutor will no doubt tell you is the confession that the defendant impliedly made or expressly made to the complainant when he made those various expressions of regret, apology, asking for forgiveness and so forth.  And in the end, what I’ll be saying to you about those, that issue, is that the fundamental problem with the prosecution argument is that it’s completely unclear what it is that he is apologising for and what it is he’s seeking forgiveness for, because at no point does [the complainant] ever say to him, ‘This is what you did.’”

30. [30]
    After then referring to the complainant’s evidence that she thought the appellant was leaning in to kiss her, counsel for the appellant submitted:

“Is it possible that when she sat up and looked apparently concerned about what happened and the defendant apologised, that that somehow has kicked off this whole thing.  That his apology, after her misunderstanding of what it was that he was doing, has reinforced in her mind in fact that he was up to no good.  And this is where the evidence of the cultural matters comes into play.  I’m not suggesting to you for a moment that no Yoruba man is capable of behaving appallingly and that no Yoruba man is capable of being dishonest, nor am I suggesting to you that Yoruba men are incapable of actually apologising.  But the evidence about the propensity to say sorry when you’re not actually apologising for something that you’ve done is important, and the fact that it’s actually a thing and not just this, sort of, defence lawyer’s pipe dream, emerged with great clarity…

Can I deal with the issue of the apology.  I mean, to call it an apology is one way of describing it, it was expressed in many different ways, and I return to the evidence of the cultural matters.  Now, as I say, I wasn’t leading that evidence before you as some sort of complete answer, as some sort of slam dunk, that there’s just no way the defendant could have been actually apologising for something that he’d actually done.  It’s simply to inform you that it’s really a bit more nuanced than that, that people from this particular part of Nigeria do have an interesting way of using the word sorry.  And there are cultural issues at play when it comes to the resolution of conflict.  The defendant is undoubtedly a senior and well-respected man in his community.  The complainant was a young woman, an employee of his, and he obviously did not want to lose her.  So is what he said consistent with his attempts to pacify her, to acknowledge whatever it is that she’s upset about and to persuade her to stay rather than going to Brisbane…

So it’s really important that you ask yourselves, all right, well if he’s asking for forgiveness, what’s he asking for forgiveness about?  If he’s apologising, what’s he apologising for?  If this is in truth a confession, what’s he confessing to?  Is he confessing to rape?  Because that’s the charge.”

31. [31]
    In a final submission, senior counsel reiterated the points he had previously sought to make:

“So, members of the jury, can I return to the opening comment that I made.  Is there not a risk that this whole thing is just a misunderstanding?  That it kicked off when the defendant immediately apologised when the complainant exhibited some signs of discomfort.  And it’s a misunderstanding that has been perpetuated by his apparent but non-specific apologies to her over the two weeks that followed.  Ask yourselves, does he ever really actually admit to anything?”

32. [32]
    In his closing address to the jury, the Crown prosecutor identified the evidence of the statements said to have been made by the appellant to the complainant in which he seemingly apologised for what he had done.  As had been anticipated by senior counsel for the appellant, the Crown prosecutor argued to the jury:

“…And that’s the evidence coming from the defendant’s mouth himself.  And in my submission those statements, those apologies and those other statements that he made are admissions to the offence…

Now, in my submission, it’s apparent that the defendant accepts he did something extremely inappropriate and extremely wrong to [the complainant], insofar as it fractured their previously good relationship and it’s something that he was begging for forgiveness for.  This case is not going to come down to a stereotype on culture.  It’s going to be decided by you on the evidence before you, and you have all that now.  In my submission, this was not a man being empathetic, this was a man trying to apologise to a young woman for breaching her trust and violating her.  So when you add all those features together and in combination, you would find that those conversations, those statements are admissions to the offence and you can use those admissions to corroborate [the complainant’s] version which will lead you to a finding that the defendant is guilty of rape.”

33. [33]
    In addition to summarising the respective cases for the Crown and the appellant on the issue, the trial judge gave the jury the following directions with respect to the statements said to have been made by the appellant:

“The Prosecution rely on statements said to have been made by the defendant to the complainant as supporting its case against him. The Prosecution contend that the defendant, by his statement, is accepting he did a wrongful act on the 4^th [of] October 2018, and the statements are on the 4^th of October when the complainant sat up the defendant said to her:

‘I’m sorry.’

In a conversation at the medical centre on the 9^th of October 2018 the complainant gave evidence that the defendant said:

‘Kept saying he’s sorry. He can’t explain why he did it or why it happened. He was just sorry.’

And as the complainant got to the door, the defendant said:

‘Will you ever forgive me?’

And in the recorded conversation at the medical centre on the 17^th of October 2018 the defendant made statements such as:

‘I’m sorry. It was never my intention. It was a mistake. I never meant to hurt you. It’s between me and you and that will never happen again, and nobody will ever know about it. I’m sorry to be the source of that pain. Leave it between us and please forgive, and I’m promising you to today between both of us now I will never hurt you again. I never planned to hurt you in the first instance.’

Now, to rely on that evidence, you must be satisfied of a number of matters.

First, you must be satisfied the defendant made the statement.  You will need to find the complainant’s evidence of what the defendant said on the 4^th and 9^th of October 2018 is credible and reliable before you can use the evidence to support the Prosecution’s case.  The defendant’s statements on the 17^th of October 2018 were recorded.  That is, as I have said, in exhibit number 3, and you can play that as often as you wish.  The defendant does not contend he did not make those statements.

Secondly, you must be satisfied that the statement is true and accurate.  It is up to you to decide whether you are satisfied that those things said by the defendant, which are capable of supporting the Prosecution case, were true, because if you are not so satisfied you cannot rely on them as going to prove his guilt.

Thirdly, you must be satisfied that the statement is made about the act relied on to constitute the offence.

If you are not satisfied of those matters, you cannot rely on the statements as going to prove the defendant’s guilt and you must ignore it.  If you are satisfied of those matters, then it is up to you to decide what weight you give to the statement and what you think the statement proves.

The defendant also made statements which you might view as indicating his innocence.  You are entitled to have regard to those answers, if you accept them, and to give them whatever weight you think appropriate.  You may, in this context, consider the evidence of Mr Okunoye [sic. Konoya] that in Nigerian culture in the Yoruba tribe there is the concept of mwabaye [sic. Omoluwabi] and that the word, ‘Pele’ [pẹ̀lẹ́] which translates indirectly to the word, ‘Sorry’, in the English language is used as an expression of empathy as opposed to an acceptance of responsibility, and also his evidence about the approach to conflict resolution generally in that culture.

Ms Elizabeth Joseph and Sarah Polzin also gave evidence about how Nigerian people might use the word, ‘Sorry’, in certain circumstances to express empathy.

In relation to the statements which the Prosecution relies on as supporting its case and those which point to innocence, it is entirely up to you what use you make of them and what weight you give to them.  Keep in mind, though, that it is the answer to any question that is the evidence and not the question asked unless the person agrees with the suggestion in the question.”

34. [34]
    No exception was taken with respect to these directions.  No further or other direction was sought by the appellant.

Submissions on appeal

35. [35]
    The appellant submits that because of the real risk that the jury might conclude that his conduct demonstrated consciousness of guilt on his part the trial judge should have given the jury an Edwards-type direction to warn them about such a process of reasoning.
36. [36]
    He contends that the trial judge should have obviated this risk by either directing the jury that consciousness of guilt reasoning was not open or by directing the jury about the proper process of consciousness of guilt reasoning.  He submits that an appropriate direction would have included the following instruction:

“Before the evidence of the defendant’s comments to the complainant, including the request to delete the recording, can assist the prosecution, you would have to find that it was motivated by a consciousness of guilt on the defendant’s part. If, and only if, you reach the conclusion that there is no other explanation for the defendant’s conduct, and that it was not motivated by, for example, the practice known as Omoluabi [sic. Omoluwabi] and the concept of pele [pẹ̀lẹ́], or of matters like panic or fear of wrongful accusation, then you are entitled to use that finding as a circumstance pointing to the guilt of the defendant, to be considered with all the other evidence in the case.”

37. [37]
    During the hearing of the appeal the appellant’s counsel confirmed that the proposed direction should have been given in respect of the evidence of each of the statements made by the appellant and his request of the complainant to delete the recording she made on 9 October.  The appellant’s counsel conceded however that if the evidence at trial was only in respect of the statements made by the appellant, then no such direction would have been required.  He submitted that the act of requesting the conversation be deleted was the “tipping point” which made it necessary for the direction to be given.
38. [38]
    The appellant acknowledges that he was represented by experienced senior counsel at trial and that he did not ask the trial judge for any such direction.  He accepts that the failure to ask for such a direction is a relevant consideration on appeal but nevertheless submits that the obligation of the trial judge was to give the direction, irrespective of any argument made by the Crown about how the evidence was to be used and regardless of the fact that his trial counsel did not seek such a direction.
39. [39]
    The respondent submits the trial judge was not required to give a direction of the kind now identified by the appellant as it was not necessary in the circumstances, having regard to the nature of the evidence and the real issues in dispute at trial.  The respondent emphasises that it was no part of the Crown case that the appellant had engaged in post-offence conduct demonstrating consciousness of guilt and no argument to that effect had been made by the Crown prosecutor to the jury.

Was an Edwards-type direction required?

40. [40]
    In Edwards v The Queen,^[2] the majority explained the distinction between the telling of a lie that merely affects the credit of the witness who tells it and a lie told by an accused which, in limited circumstances, may amount to conduct inconsistent with innocence and therefore constitute an implied admission of guilt. Their Honours then went on to explain the circumstances which must exist before the telling of such a lie may be capable of demonstrating consciousness of guilt by an accused, stating:^[3]

“A lie can constitute an admission against interest only if it is concerned with some circumstance or event connected with the offence (i.e. it relates to a material issue) and if it was told by the accused in circumstances in which the explanation for the lie is that he knew that the truth would implicate him in the offence. Thus, in any case where a lie is relied upon to prove guilt, the lie should be precisely identified, as should the circumstances and events that are said to indicate that it constitutes an admission against interest. And the jury should be instructed that they may take the lie into account only if they are satisfied, having regard to those circumstances and events, that it reveals a knowledge of the offence or some aspect of it and that it was told because the accused knew that the truth of the matter about which he lied would implicate him in the offence, or, as was said in Reg v Lucas (Ruth), because of ‘a realization of guilt and a fear of the truth’.

Moreover, the jury should be instructed that there may be reasons for the telling of a lie apart from the realization of guilt. A lie may be told out of panic, to escape an unjust accusation, to protect some other person or to avoid a consequence extraneous to the offence. The jury should be told that, if they accept that a reason of that kind is the explanation for the lie, they cannot regard it as an admission. It should be recognized that there is a risk that, if the jury are invited to consider a lie told by an accused, they will reason that he lied simply because he is guilty unless they are appropriately instructed with respect to these matters. And in many cases where there appears to be a departure from the truth it may not be possible to say that a deliberate lie has been told. The accused may be confused. He may not recollect something which, upon his memory being jolted in cross-examination, he subsequently does recollect.”

41. [41]
    In a case where the Crown contends a lie told by an accused is evidence of guilt, a trial judge is required to direct the jury in accordance with the above passage from Edwards.
42. [42]
    Of course, it is not only the telling of a lie by an accused that may amount to conduct demonstrating a consciousness of guilt.  Other types of post-offence conduct, such as flight and the destruction or concealment of evidence, may also be capable of demonstrating consciousness of guilt by an accused.^[4]  Where the Crown contends that evidence of relevant post-offence conduct may be used in this way, a trial judge is required to provide an appropriate Edwards-style direction to the jury.  The same may be said even if the Crown does not expressly describe the post-offence conduct in those terms if it is apparent that the Crown does seek to use the evidence to establish that the accused was implicitly admitting his guilt.^[5]
43. [43]
    But it is not necessary for a trial judge to give an Edwards-type direction in every case in which evidence is adduced of post-offence conduct which might be considered capable of demonstrating consciousness of guilt by a defendant.  Where the Crown does not contend that the evidence reveals the defendant’s realisation of guilt and does not otherwise seek to use it in that way, such a direction is not generally required unless the trial judge apprehends that there is a real danger that the jury may apply such a process of reasoning.^[6]
44. [44]
    In the present case, in circumstances where the Crown did not contend that any of the statements made by the appellant amounted to evidence demonstrating consciousness of guilt, and where no such direction of the kind now suggested was sought by defence counsel, the trial judge did not give the jury an Edwards-type direction.  Accordingly, the question for this Court is whether a miscarriage of justice was occasioned by the trial judge’s failure to give such a direction.
45. [45]
    The fact that defence counsel did not seek such a direction at trial is not determinative.  However, it is a relevant consideration.  It supports a conclusion that in the context of the trial the direction was not required.^[7]
46. [46]
    Nevertheless, the ultimate issue remains whether there has been a miscarriage of justice by reason of the absence of a direction of the kind which it is now contended should have been given by the trial judge.  A miscarriage of justice will have occurred if the failure to give an Edwards-type direction was “prejudicial in the sense that there was a real chance that it affected the jury’s verdict” or “realistically could have affected the verdict” or “had the capacity for practical injustice” or was “capable of affecting the result of the trial”.^[8]
47. [47]
    In my opinion no miscarriage of justice was caused by the trial judge’s failure to give an Edwards-type direction.
48. [48]
    As I see it, such a direction was not required.  This was not a case where the Crown sought to rely on the evidence of the statements made by the appellant as evidence of conduct amounting to an implied admission.  The Crown case was more obvious and direct.  It contended that by making the statements the appellant admitted his guilt in respect of the wrongful act the subject of the offence with which he was later charged.  This was clearly a contested issue at trial.  Although the appellant did not dispute that he made the statements, he contended that in doing so he was not actually apologising for the alleged wrongful act and thereby admitting his guilt.  The real issue for the jury therefore was not whether the appellant was impliedly admitting his guilt.  It was whether he was actually admitting his guilt.  Having regard to the nature of the evidence of the making of the statements, the purpose for which the evidence was admitted and relied upon by the Crown and the issue for the jury’s consideration, it would have been unnecessary and inappropriate for the trial judge to have introduced the concept of an implied admission by conduct demonstrating consciousness of guilt in any directions on this evidence.
49. [49]
    What was required, and given by the trial judge, were directions on whether the statements made by the appellant might be considered as evidence of admissions made by him.  In that respect, the jury was instructed that it could only use the statements as evidence supporting the Crown case if it was satisfied:

    1. a.
       the appellant made the statements (of which there was no issue);

    1. b.
       the statements were true and accurate; and

    1. c.
       that by making the statements the appellant was admitting to the wrongful act the subject of the charge.
50. [50]
    To the extent that any concept of consciousness of guilt might have been relevant, it was implicitly part of the third requirement of the directions given by the trial judge.
51. [51]
    In addition to identifying these requirements, the trial judge also instructed the jury that it was entitled to have regard to statements made by the appellant that indicated his innocence.  In that respect, the trial judge directed the jury to consider the evidence given by Mr Konoya about the concept of Omoluwabi and the word pẹ̀lẹ́ and the evidence of the character witnesses about how Nigerian people might use the word “sorry” in certain circumstances to express empathy.  Although clearer and more fulsome directions may have been given, I am satisfied that the trial judge’s directions appropriately and adequately instructed the jury to have regard to other innocent explanations for the appellant’s statements.
52. [52]
    In my opinion, the directions given by the trial judge about the statements made by the appellant to the complainant were adequate and sufficient.
53. [53]
    The evidence of the appellant asking the complainant to delete the recording she had begun making at the start of the in-person conversation they had on 9 October at the salon is of a different character to the statements made by the appellant.  It is evidence of conduct that may properly be characterised as evidence of an implied admission, because it was capable of being viewed as conduct motivated by a guilty conscience.  However, I do not consider that this was the “tipping point” that necessitated the giving of an Edwards-type direction.  In my view, there was no real danger that the jury might otherwise misunderstand this evidence and engage in consciousness of guilt reasoning to the prejudice of the defendant.
54. [54]
    A direction of the kind now suggested would have been completely redundant.  The request to delete the recording was a peripheral event, preceding the unchallenged evidence of the conversation that took place on 9 October, in which the appellant apologised to the complainant.  Even if the appellant’s conduct in asking the complainant to delete the recording she had made might be considered as evidence demonstrating consciousness of guilt by the appellant, it would have been of very slight probative value and would have been completely overtaken by the far more significant evidence of his apparent extensive admissions to the complainant in each of their subsequent conversations.
55. [55]
    Aside from not being necessary, there is an entirely sensible reason why senior counsel for the appellant would not have asked for the direction for which the appellant now contends, or for requesting that the jury be directed not to engage in consciousness of guilt reasoning.  The Crown did not rely on this evidence as demonstrating consciousness of guilt.  Neither party referred to it in their addresses and the trial judge did not refer to it in his summing up.  If such a direction of either kind had been given it would have served to alert the jury to a matter that was given no real significance in the trial and would have highlighted another aspect of the appellant’s conduct that could potentially have prejudiced his defence.  It was forensically better to not have the matter raised by the trial judge at all.  To do otherwise would be to emphasise a matter, to the appellant’s potential detriment, that was otherwise of no real moment and most unlikely to be acted upon by the jury in the way the appellant submits.^[9]
56. [56]
    In my view it cannot be said that there was a real chance that the trial judge’s failure to give an Edwards-type direction in respect of either the evidence of the statements made by the appellant, or his request that the complainant delete the recording she made on 9 October, affected the verdict.

Conclusion and Order

57. [57]
    In my view, it cannot be said that the failure to give a direction of the kind now complained of caused a miscarriage of justice.
58. [58]
    I would order that:

1. The appeal be dismissed.